SUWIDI MAMUDA KADEMI v. ABUBAKAR DANLADI ISAH & ORS
(2019)LCN/13364(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of May, 2019
CA/K/143/2019
RATIO
FUNCTUS OFFICIO: WHEN DOES A JUDGE BECOME FUNCTUS OFFICIO
It is settled law that a Judge becomes functus officio after making an order or giving a judgment. He no longer has the power to review such an order or judgment except in cases of correction of accidental slips or mistakes. I place reliance on the case of Nicon v. P.I.E. Co. Ltd (1990) 1 NWLR (Pt. 129) 701. PER JAMES GAMBO ABUNDAGA, J.C.A.
WHEN A COURT CAN SET ASIDE IT’S OWN JUDGMENT
The cases of Obimonure v. Erinosho (1966) 1 ALL NLR 250 and Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548 firmly established the power of the Court to set aside its own order or judgment, but on fulfillment of certain conditions. In the case of Obimonure v. Erinosho (supra) what was in issue was lack of service and it was firmly held that a Court can set aside its order where non-service of the process from which the order emanated was proved.
In the case of Tomtec Nigeria Limited v. Federal Housing Authority (2010) 16 WNR P 24 @ 45-46, Lines 30-10, (2009) LPELR-3256 (SC), the Court held:It is settled law that Courts of record have the inherent jurisdiction to set aside their judgment/decision/order in appropriate cases or under certain circumstances which include when:
(i) The judgment is obtained by fraud or deceit either in the Court or of one or more of the parties;
(ii) The judgment is a nullity;
(iii) It is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it;
(iv) The judgment was given in the absence of jurisdiction;
(v) The procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication;
(vi) Where there is fundamental irregularity.
See Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 436, @ 453-454, Ebe v. Ebe (2004) 3 NWLR (Pt. 860) 215 @ 243; Odofin v. Olabanji (1996) 3 NWLR (Pt. 435) 126 @ 133. Per Onnoghen, JSC (P. 29, paras A-E).PER JAMES GAMBO ABUNDAGA, J.C.A.
JUSTICES
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
SUWIDI MAMUDA KADEMI Appellant(s)
AND
1. ABUBAKAR DANLADI ISAH
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)Respondent(s)
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of the Federal High Court, Kano, delivered on 8th March, 2019 by Hon. Justice A. L. Allagoa in Suit No. FHC/KN/CS/170/2018.
The 1st Respondent herein, as plaintiff commenced action against the 1st, 2nd and 3rd defendants who are Appellant, 2nd and 3rd Respondents respectively in the instant appeal. In the Originating Summons which was taken on 15th November, 2018, the following questions were raised for determination by the Court:
1. Considering the clear provisions of the Electoral Act, 2010, (as amended) and the fact that the 2nd Respondent conducted its primary election in Kano State on the 4th October, 2018 for the purpose of nominating its House of Assembly, Gaya constituency candidate for the general election slated for 16th February, 2019 (or any other designated date) and announced its result, whether it is not mandatory for the 2nd Respondent to nominate and submit its House of Assembly, Gaya Constituency candidate for 16th February, 2019 (or any date for such exercise) General Election on the basis of the said Primary
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Election.
2. Having regard to the provisions of Section 153 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and all other provisions of the same Constitution setting out, the powers and functions of the 3rd Respondent, and Section 87 of the Electoral Act, 2010 (as amended) mandating all political parties to conduct primary elections, whether it is not mandatory for the 2nd Respondent to nominate and submit the plaintiff as its House of Assembly candidate for the Gaya Constituency of Kano State to be held on 16th February, 2019, Or any other date to which same may be postponed?
3. Considering the express provisions of Section 87 of the Electoral Act 2010 (as amended) and the time table of activities for the 2019 General Elections, whether the 2nd Respondent was right to have substituted the name of the Plaintiff with that of the 1st Respondent, as the 2nd Respondents candidate for the House of Assembly General Election for Gaya Constituency; the 1st Respondent not being the winner of the Primary Election.
4. Having regards to the provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended
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and the Electoral Act 2010, (as amended) whether the 2nd Respondent having screened and cleared the plaintiff to participate in the 2nd Respondents House of Assembly Primary Election for Gaya Constituency of Kano State held on the 4th October, 2018 and having contested and won the said Primary Election, whether the 2nd Respondent can substitute the name of the plaintiff as the House of Assembly Candidate of the 2nd Respondent for the February 16th 2019 General Election into the Gaya Constituency of Kano State.
5. Having regard to Section 87 of the Electoral Act, 2010 and the Primary Election conducted in Kano State on the 4th October, 2018 by the 2nd Respondent, whether it is within the powers of the officials of the 2nd Respondent to suo-moto and unilaterally change or substitute the plaintiff with the 1st Respondent under whatever guise.
Upon the determination of the questions the plaintiff prayed for the substantive reliefs hereunder stated:
1. A DECLARATION that having conducted its only Primary Election in the Gaya constituency of Kano State on the 4th day of October, 2018, for the purpose of nominating the 2nd Respondents
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candidate for the General election into the House of Assembly slated for 16th February, 2019, or any other date for such exercise, it was mandatory for the 2nd Respondent to forward the winner of the said Primary Election, as the partys flag bearer for the purpose of participating and contesting in the House of Assembly Gaya Constituency of Kano State Election slated for 16th day February, 2019 in accordance with the Electoral Act 2010 (as amended) and the 2nd Respondents guidelines for nomination of candidates.
2. A DECLARATION that the plaintiff having scored the highest number of votes and declared winner by the Electoral Officer in the 4th October, 2018, via direct Primary Election of the 2nd Respondent, was entitled to have his name back and/or submitted/forward to the 3rd Respondent, and he is consequently entitled to fly the 2nd Respondents House of Assembly flag for Gaya constituency for the 16th February, 2019 General Election in accordance with Section 87 of the Electoral Act, 2010 (as amended)
3. A DECLARATION that the substitution of the plaintiffs name as the 2nd Respondents flag bearer for the
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General Election into the Gaya Constituency of the Federal House of Assembly, slated for the 16th day of February, 2019 after winning the primary Election by the 3rd Respondent is contrary to the provisions of the Electoral Act, 2010 and the 2nd Respondents guidelines for nomination of candidates.
4. A DECLARATION that it is illegal, unlawful and contrary to both the Electoral Act, 2010 and the 2nd Respondents guidelines for the Respondent as the House of Assembly candidate for the Gaya Constituency in the General Election slated for 16th February, 2019, after the plaintiff emerged as the winner of the House of Assembly direct Primaries conducted by the 2nd Respondent and supervised by the 3rd Respondent.
5. AN ORDER of injunction restraining the 3rd respondent either by itself, officers or agents, privies, staff or through any person or persons howsoever from recognizing, accepting or dealing with the 1st Respondent (whose name was substituted by the 2nd Defendant) as the flag bearer of the 2nd Respondent in the forthcoming February 16th, 2019, General Election, or any other day for such exercise, the 1st Respondent having not emerged
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in accordance with the provisions of the Electoral Act, 2010 as amended.
6. AN ORDER directing the Defendants particularly the 3rd Respondent to recognize without much ado or hesitation, accept and deal with the plaintiff as the rightful and equitable flag-bearer of the 2nd Respondent in the Gaya House of Assembly Constituency of Kano State, General Election slated for 16th February, 2019, having emerged as the winner of the 2nd Respondents Primary Election held on the 4th day of October, 2018 and whose name ought to have been substituted (sic) to the 3rd Respondent by the 2nd Respondent, in accordance with the Electoral Act, 2010 as amended.
7. AN ORDER setting aside anything done or purported to have been done by the Defendants, their agents and privies or any person or persons by whatever name called, jointly or severally, in giving effect to the wrongful submission or substitution, of the 1st Respondents candidate for the election into the Gaya Constituency at the forth coming House of Assembly General Election scheduled for the 16th of February, 2019 or any such further date or dates or time as may be prescribed by the 3rd
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Respondent for that purpose.
8. AN ORDER directing the 2nd respondent to submit the name of the plaintiff who got the highest number of votes at the 2nd Respondents House of Assembly Primary Election for Gaya constituency of Kano State, to the 3rd Respondent as the validly nominated candidate to represent the 2nd Respondent at the February 16th, 2019 General Election or such other time or date as prescribed by the 3rd Respondent for that purpose. The Originating Summons is supported by an affidavit of 23 paragraphs deposed to by Honourable Abubakar Danladi, the plaintiff. Thereto attached are Exhibits A1-A16.
Accompanying the affidavit is the written address of counsel to the plaintiff. The 1st defendant filed a 10 paragraph counter affidavit deposed to by Mustapha Muhammad Usman, a legal practitioner on 31st December, 2018. Attached to the counter-affidavit are Exhibits A1-A10 and B. The counter affidavit is accompanied with the written address of 1st defendants counsel, Adamu Abubakar, Esq,.
On 22nd January, 2019, the 2nd defendant filed a counter affidavit of 11 paragraphs deposed to by one Mohammad Uba Sagaji. Attached
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to the counter affidavit are Exhibits A and B. There is also an accompanying written address of counsel of 2nd defendants, M. A. Lawan, Esq.
On 11th January, 2019, the 3rd defendant filed a counter affidavit of 4 paragraphs deposed to by Tomitope Ogunmefun, Esq. On 23rd January, 2019, the plaintiff filed a further and better affidavit deposed to by the plaintiff. Also filed on 28th January, 2019 is reply on points of law to the 1st defendants Preliminary Objection dated 31st December, 2018. On 6th February, 2019, the plaintiff filed another further and better affidavit to the 3rd defendants counter affidavit, dated 11th January, 2019. Attached thereto is Exhibits A17.
The 1st defendant filed a notice of preliminary objection on 31st December, 2018. It is accompanied with a written address of counsel. On 23rd January, 2019 the 2nd defendant filed a notice of Preliminary Objection. It is accompanied with written address of counsel. On 11th February, 2019, both the notices of preliminary Objection and the Originating Summons were heard. At the hearing the 1st and 2nd defendants moved their notices of Preliminary
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Objection by adopting the processes. The plaintiff promptly responded by also adopting the respective replies filed thereto in opposition. Thereafter processes in the Originating Summons were adopted. The Court then adjourned to 21st February, 2019 for Judgment. On 21st February, 2019 when parties came to Court for Judgment, the trial Judge stated that having gone through all the processes filed and argument of counsel, he found the facts in the case hostile and conflicting and ordered for Oral Evidence, and adjourned to 26th February, 2019 for hearing. As is apparent from the record of appeal the Court did not sit on 26th February, 2019. On 7th March, 2019, the Court reversed itself, and instead of taking oral evidence to reconcile the evidence he had earlier found hostile and conflicting, he adjourned for judgment, holding that the matter could be resolved without calling oral evidence.
In the judgment delivered on the said 8th march, 2019 questions 1 and 2 were answered in the affirmative while questions 3, 4 and 5 were answered in the negative. However, all the reliefs sought in the Originating Summons were granted. The appellant found this judgment
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unsalutory and decided to appeal against it by filing a notice of appeal on 8th March, 2019, the very day the judgment was rendered.
The appeal is predicated on four grounds. The grounds, without their particulars (even though supplied) are as hereunder reproduced for ease of reference:
GROUND ONE
The trial Court misdirected itself in law when after it had made an order directing the parties to call oral evidence to resolve conflicts in the affidavit evidence before it suddenly on 7th March, 2019 set 8th March, 2019 for judgment against its earlier ruling.
GROUND TWO
The trial Court erred in law when despite its earlier ruling that the affidavit evidence before it are conflicting coupled with an order to parties to call oral evidence to resolve same held that the Originating Summons is the proper procedure to commence such a hostile action.
GROUND THREE
The trial Court erred in law when it held that the suit was not caught by the provision of Section 285(9) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and thereby assumed jurisdiction.
GROUND FOUR
The trial Court erred in law when
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in its judgment it made reference to and relied on the processes it has in the course of its proceeding struck out. The record of appeal was compiled and transmitted to this Court on 26th March, 2019.
The Appellants brief of argument, settled by Adamu Abubakar, Esq, was filed on 2nd April, 2019, while the 1st Respondents brief of argument, settled by M. A. Lawan, Esq was filed on 8th April, 2019. The Appellants Counsel filed appellants reply brief of argument on 17th April, 2019. The appellant formulated four issues one each from this four grounds of appeal. They are as follows:
1. Whether the trial Court was not in error when it set aside its earlier ruling for calling of oral evidence upon the application of 1st Respondent and proceeded for judgment depriving the Appellant right to be heard. (Distilled from ground One)
2. Whether the trial Court was right after it had ruled that there were conflicts in affidavit evidence, subsequently held that 1st Respondent complaint in the Originating Summons was within the law. (Distilled from ground Two)
3. Whether the trial Court did not drew a wrong inference
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from the Further and Better Affidavit evidence of 1st Respondent to come to the conclusion that the action was not caught by Section 285(9) of the Constitution of the FRN as amended by the 4th Alteration Act. No. 2 of 2017. (Distilled from ground Three)
4. Whether the trial Court was not in error when it made use of processes it struck out by its ruling to arrive at its conclusion that the affidavit evidence of the 2nd Respondent are contradictory and therefore rejected them. (Distilled from ground Four)
The 1st Respondent adopted the issues formulated by the appellant with some modification in his brief of argument. The issues, as modified are three and are as hereunder stated:
1. Whether the lower Court was right in setting aside its Ruling of 21st February, 2019, pursuant to an application of the 1st Respondent? (Issue 1 is distilled from Grounds 1 and 2 of the Appellants Notice of Appeal)
2. Whether the 1st Respondents suit before the lower Court was not statute barred? (Issue 2 is distilled from Ground 3 of the Appellants Notice of Appeal)
3. Whether the lower Court was right in holding that
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the affidavit and documentary evidence adduced by the Appellant and the 2nd Respondent before it were contradictory and manifestly unreliable? (Issue 3 is distilled from Ground 4 of the Appellants Notice of Appeal)
I am of the view that a concise consideration of the issues projected in this appeal can be better accommodated under three issues I here under formulate as follows:
1. Whether the trial Court was not in error when it set aside its earlier ruling calling for oral evidence to resolve conflicts in the affidavit evidence.
2. Whether on the affidavit evidence before the Court the 1st Respondent proved his claims to entitle him to judgment.
3. Whether the other contestants are necessary parties in the plaintiff/1st Respondents Originating Summons.
RESOLUTION OF ISSUES
ISSUE 1
Whether the trial Court was not in error when it set aside its earlier ruling calling for oral evidence to resolve conflicts in the affidavit evidence.
Preliminarily, I like to state that I consider issue one a hurdle to cross to the other issues. The thrust of issue one is that it questions the propriety of the
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action of the lower Court in setting aside or rescinding its earlier order calling for oral evidence after coming to conclusion on a review of the various affidavit evidence that the facts of the case are, as in his own words, substantiating, hostile and conflicting. In substance the issue questions the competence of the Court to set aside that decision, and to adjourn the matter for judgment and indeed to deliver the judgment. Once this Court finds that the lower Court was in error, the effect would be to nullify the judgment, in which case the need to address issues 2 and 3 will not arise. Issue One therefore deserves a dispassionate and meticulous consideration devoid of any technicality that could result in injustice.
Learned counsel to the appellant submitted that pursuant to the order of the Court to hear oral evidence and the option given to parties to call additional witnesses, the 1st respondent filed a motion on notice for leave to call an additional witness in the name of Muhammed Uba Sagagi whose witness statement on oath was filed along with the motion on notice. He referred to pages 377-380 of the record of appeal. He pointed
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out that on 7th March, 2019, when it was expected that the motion on notice would be moved by the plaintiff (1st Respondent) his counsel urged the Court to proceed to deliver judgment on the affidavit evidence and documents before it, the Court adjourned to 8th March, 2019 for judgment despite objections from the Appellant and 2nd Respondent. Counsel submitted that the procedure adopted by the Court is an aberration which occasioned the appellant miscarriage of justice. It was further contended for the appellant that the trial Court erred in rescinding its earlier order for oral evidence without affording the Appellant and 2nd Respondent the right to be heard. Counsel placed reliance on the case of Mobil Producing (Nig) limited v. Uwemedimo (2006) ALL FWLR (Pt. 313) 116 @ 131. Also cited in support of this submission is the case of Lawal v. Yakubu Dawodu (1972) 8-9 SC 83. Further submission is that the Court became functus officio after making the order it made for oral evidence. Reliance is placed on Nicon v. PIE Co. Ltd (1990) 1 NWLR (Pt. 129) 701. That the Court lacked the competence to reverse, or correct itself or set aside its previous judgment or
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order. Reliance is placed on Obimonure v. Erinosho (1966) 1 ALL NLR 250 and Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548. He listed the exceptions when a Court can alter or vary its judgment or order after it had been uttered and drawn up and submitted that the exceptions do not extend to the Courts mistake of law even where it is apparent on the face of the order or judgment, nor can it be invoked where the order or judgment correctly expresses the Courts intention. Reliance is placed on Ovenseri v. Osagiede (1998) 11 NWLR (Pt. 572) 5.
Counsel submitted that the trial Courts action had occasioned miscarriage of justice to the appellant. Learned counsel to the 1st Respondent combined issues one and two of Appellants issues to make up his issue one. At the onset of any consideration of issue one, I have explicitly explained why the said issue one will be taken separately and will be prioritized. I am keeping to that course and will therefore consider the 1st respondents argument that has bearing to issue one. Learned counsel is by way of preliminary objection challenging the competence of grounds one and two in the
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appellants Notice of preliminary objection. His objection is that from the whole content of the Record of appeal, the appellant did not appeal against the ruling of the lower Court delivered on 7th March, 2019, rather, he submitted, appellant only appealed against the final judgment of the lower Court delivered on 8th March, 2019, as clearly indicated in the appellants Notice of appeal. He went further to submit that this Court cannot consider issues bordering on the Ruling of the lower Court delivered on 7th March, 2019. Reliance is placed by counsel on the decision of this Court in the case of N.D.I.C &Ors. v. Dr. N. S. Nwawka & Ors. (unreported) Appeal No. CA/K/425/2008, delivered on 25th October, 2013, which counsel urged me to follow to strike out grounds 1 and 2 and the issues formulated therefrom.
In the event that his objection does not see the light of day, counsel proffered alternative argument by submitting that the appellants contention that the lower Court was functus officio as respects its order of 21st February, 2019 is misconceived. His contention is that there was obviously no irreconcilable and conflicting evidence
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requiring oral evidence. It was further contended by 1st respondents counsel that the ruling on the choice as to procedure to be adopted in the course of adjudication is merely a ruling on a procedural issue and not substantive issue, and the Court was thus not functus officio. That the Court can set it aside upon a valid and well founded application of the 1st Respondent. He submitted that procedural issues are issues that can be waived in the interest of justice by a Court upon an application to that effect, just like the one made by the 1st Respondent on 7th March, 2019. Counsel predicated his submission on Order 56 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009.
It was further submitted that the lower Court was right when sequel to the application of the 1st respondent it set aside its decision of 21st February, 2019 after coming to terms with a comprehension of the real issues for determination before it which could be resolved by documentary evidence. As a buildup to that submission counsel contended that the principle of law on functus officio is not without exceptions which are not only limited to the slip rule principle.
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That it is settled law that a judgment/decision/ruling of a Court can be set aside, inter alia, where same is a nullity or where there were fundamental irregularities in granting same. Counsel premised his submission on the case of Tomtec (Nig) Ltd v. Federal House Auth (2010) 16 WRN 24 @ PP 45-46, Lines 30-10.
Counsel therefore submitted in effect that the lower Court acted rightly in setting aside its ruling of 21st February, 2019 because same was fundamentally irregular and a nullity, so as not to delay and deny Justice. In his reply on points of law as captioned in the appellants reply brief of argument, learned appellants counsel submitted that the appellant has appealed against the said ruling by virtue of grounds 1, 2 and 3 of the Appellants Notice of Appeal dated and filed on 8th March, 2019. He referred to pages 449-452 of the record of appeal. He submitted that it is trite law that an Appeal Court can be incorporate grounds in respect of interlocutory ruling in a notice of appeal in the main appeal as done by appellant in the instant appeal. He contended that the facts in the case of NDIC & Ors. v. Dr. N. S. Nwawka & Ors.
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(unreported) Appeal No. CA/K/425/2008 is not relevant to the facts of this appeal. He further submitted that the grounds are on jurisdiction and therefore do not require leave of the Court. He placed reliance on Agbiti v. Nigeria Navy(2011) 2 SCNJ 1 @ 22. On the 1st Respondents submission justifying the action of the lower Court on ground that the ruling of 21st February, 2019 was a nullity and irregularity, he submitted that it was not, and that the rescission of the order was carried out without any justifiable or justiciable reason. Further contention of counsel is that the case of Tomtec (Nig) Ltd v. Federal Housing Auth (Supra) cannot avail the 1st respondent because none of the circumstances enumerated by the Apex Court in that case exists in the instant appeal. He placed reliance on Salami v. Ajadi (2012) ALL FWLR (Pt. 638) 861.
It is not a matter of choice but one of imperativeness that I first consider the competence of grounds 1, 2 and 3 of the appellants Notice of appeal which without doubt arise from the decision made by the lower Court on 7th March, 2019 by which it rescinded its order made on 21st February, 2019
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directing parties to call oral evidence to reconcile what the trial judge referred to as substantiating, hostile and conflicting facts in the processes filed and arguments of counsel. It is common ground between the two counsel that there is no separate notice of appeal filed against the lower Courts decision on 7th March, 2019 rescinding that order. In summary, the argument of 1st respondents counsel is that since there is no separate notice of appeal challenging that decision, the grounds of appeal thereon are incompetent. On the other hand the contention of appellants counsel is that the trite position of the law is that an appeal against an interlocutory appeal can be incorporated in the appeal against the final judgment without the necessity of filing a separate notice of appeal against the interlocutory decision.
The 1st respondents counsel relied on the case of N.D.I.C &Ors. v. Dr. N. S. Nwawka & Ors. (supra) decided by this Court on 25th October, 2013. On this case, learned counsel to the appellant submitted that it is not applicable in instant case because the facts and circumstances are not the same. I have
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read the case and I can authoritatively state that the facts are not dissimilar. However that is beside the point I need to emphatically state that the issue whether the facts are similar or not, or the case is not applicable to the instant case is no longer the issue in as much as, it is evident from the record of appeal, that all the grounds of appeal contained in the notice of appeal, filed on 8th March, 2019 raise issues of law, and ground one raises issue of jurisdiction. The Supreme Court has spoken loudly on an issue like this, and no one dares bait an eye brow. I refer to the case of Terver Kakih v. People’s Democratic Party (PDP) & 3 Ors. (2014) 15 NWLR (Pt. 1430) 374 @ PP 407, Paras B-C, 407-409, Paras E-B. (Please see ration 22. Of the report) Therein, the Supreme Court held:
A party can include an appeal against a ruling in an interlocutory application in a notice of appeal against the final judgment in a case. And this is encouraged in order to avoid unnecessary delay caused by separate appeals. However, the party has to obtain leave to appeal out of time against the interlocutory ruling. In this case, the appellant’s fourth ground
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which related to the decision of the trial Court made on 3rd May, 2012 could not be merged with the notice and grounds of appeal filed on the 10th September, 2012 without leave of Court because the time to appeal against the trial Court’s decision of 3rd May, 2012 had elapsed. In the circumstance the Court of Appeal was right when it struck out the appellant’s fourth ground of appeal on the ground that it was incompetent (Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179; Salu v. Egeibon (1994) 6 NWLR (Pt. 348), 23 referred to) Per Galadima, JSC.
As can be seen the fourth ground of appeal which related to the ruling of the Court made on 3rd May, 2012 was struck out because it was filed out of time. One other ground that could render a ground of appeal from interlocutory ruling in a Notice of Appeal against the final judgment incompetent is that the ground is on facts or mixed law and facts and leave of Court was not sought and obtained. However, a ground of appeal against an interlocutory ruling in a notice of appeal against a final judgment which is based on law alone does not require leave of Court, provided that it is filed within 14 days of the ruling,
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questioned, and if outside the 14 days, leave of Court for extension of time to appeal out of time is sought and obtained. See the following cases: Rofico Ltd & Ors v. Sterling Bank Plc (2018) LPELR-45832 (CA), Patani & Ors. v. Ibedangha & Ors. (2018) LPELR-44789 (CA).
The situation where an appellant does not right away files an appeal against an interlocutory decision when it was made but waits till after the final judgment and includes the appeal against it in the Notice of appeal against the final judgment, as in the instant appeal was thus explained in the case of Patani & Ors. v. Ibedangha & Ors. (Supra) thus:
In a situation of this nature, the party so aggrieved has either of two options open to him to, wit: either he proceeds to appeal against the ruling straight away and by so doing may stall continuation of proceedings or he reserves his gun powder and await the conclusion of the trial and judgment and thereafter proceeds to make one and all-inclusive appeal. The latter position is the preferred practice which has received the nodding of appellate Courts over the years. For instance in the cas
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of Iweka v. S.C.O.A (Nig) Ltd supra, the Apex Court went on to expound the law where in interpreting Order 3 Rule 22 of the Court of Appeal Rules, 1981, a facsimile of the parallel rule under the Court’s 2002 Rules, held that:.Under this rule a Party who is dissatisfied with a judgment and who appeals against it may raise complaint against any interlocutory order made by the trial Court even though he has not appealed against that interlocutory order when it was made… Per Jombo-ofo, JCA (PP 9-13, para C)
There are two important points that finally settle the argument in this appeal on this issue. The first is that the grounds of appeal, particularly ground one raises a ground of law. As is borne out from the records, the facts relating to the issue in contention are not in dispute. What is a contention is the legality of the steps taken by the learned trial Judge. Secondly, the action complained of took place on 7th March, 2019, when the learned trial judge decided to rescind or set aside his earlier order of 21st February, 2019 calling for oral evidence. Final Judgment was given on 8th March, 2019. The Notice of appeal against the judgment was
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filed on the same date. The appeal was therefore filed within 14 days of the interlocutory decision complained of in grounds one, two and three contained in the Notice of appeal. There is therefore a valid notice of appeal, and by extension, the grounds of appeal objected to by the 1st Respondent herein are valid.
I shall now examine the legality/validity of the decision. It is settled law that a Judge becomes functus officio after making an order or giving a judgment. He no longer has the power to review such an order or judgment except in cases of correction of accidental slips or mistakes. I place reliance on the case of Nicon v. P.I.E. Co. Ltd (1990) 1 NWLR (Pt. 129) 701. The cases of Obimonure v. Erinosho (1966) 1 ALL NLR 250 and Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548 firmly established the power of the Court to set aside its own order or judgment, but on fulfillment of certain conditions. In the case of Obimonure v. Erinosho (supra) what was in issue was lack of service and it was firmly held that a Court can set aside its order where non-service of the process from which the order emanated was proved.
In the case of Tomtec Nigeria Limited v. Federal Housing Authority
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(2010) 16 WNR P 24 @ 45-46, Lines 30-10, (2009) LPELR-3256 (SC), the Court held:It is settled law that Courts of record have the inherent jurisdiction to set aside their judgment/decision/order in appropriate cases or under certain circumstances which include when:
(i) The judgment is obtained by fraud or deceit either in the Court or of one or more of the parties;
(ii) The judgment is a nullity;
(iii) It is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it;
(iv) The judgment was given in the absence of jurisdiction;
(v) The procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication;
(vi) Where there is fundamental irregularity.
See Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 436, @ 453-454, Ebe v. Ebe (2004) 3 NWLR (Pt. 860) 215 @ 243; Odofin v. Olabanji (1996) 3 NWLR (Pt. 435) 126 @ 133. Per Onnoghen, JSC (P. 29, paras A-E).
There is really no disagreement between counsel as to the circumstances under which a Court can set aside its
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judgment/decision/order. However, whether any of the circumstances applies in the instant case is what is in contention. The 1st Respondents counsel finds justification for the action of the lower Court on grounds of nullity, irregularity, or that it was a choice of procedure to be adopted which the Rules of Court permitted the trial judge to take for speedy determination of the case. In counsels argument he referred to and placed reliance on Order 56 Rules 1 of the Federal High Court (Civil Procedure) Rules, 2009 which provides:
Subject to particular rules, the Court may in all causes and matters make any order which it considers necessary for doing justice, whether the order has been expressly asked for by the person entitled to the benefit of the order or not.
The provision supra has been misconceived by learned 1st Respondent Counsel. While it is accepted that the provision of Order 56 Rule 1 (supra) permits the learned trial judge to make the order he made on 21st February, 2019 calling for oral evidence upon going through all the processes filed and argument of counsel, it is most inappropriate to rescind or set aside the
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order under the same provision in total disregard to the circumstances laid down by law for setting aside his own order that was validly made. I am unable to accept the submission of counsel that the trial judge rightly set aside the order of 21st February, 2019 because it is a nullity, and irregular. The argument sounds preposterous. The law is trite that where depositions in affidavits of contesting parties conflict, the Court is not allowed to prefer one deposition to the other. In such cases of conflict the only course open to the Court is to resolve the conflict through hearing oral evidence. See Atanda & Anor. V. Akunyun & Ors. (1988) LPELR-588 (SC).
The Order of the Court on 21st February, 2019 calling for oral evidence was a step rightly taken as accepted by the Apex Court in a plethora of cases. On 11th February, 2019, the parties adopted their processes in the Originating Summons and adjourned to 21st February, 2019 for judgment. On the said 21st February, 2019, the Court at pages 411-412 of the record stated thus:
COURT: This matter was slated for judgment toady, but this honourable Court having gone through all the
29
processes and argument of counsel, the facts of this case are substantiating hostile and conflicting. It is therefore the decision of this honourable Court that oral evidence be called for the deponents of the various affidavits to be cross examined on their depositions in their affidavit evidence. This is however without prejudice to the rights of the parties to call relevant additional witnesses who will swear to affidavits and present themselves for cross examination. At the end of the trial, the various preliminary objections will be determined together with the substantive suit if the need arises.
How can the decision supra be said to have been made without jurisdiction or be tagged a nullity? I want to believe that between 11th February, 2019 and 21st February, 2019 when the trial Judge made the order for oral evidence, he had sufficient time to study the case, and indeed his pronouncement showed that he did. I am unable to come to terms with his statement on 7th March, 2019 that after reviewing the facts of the case, the matter can be resolved without calling oral evidence. This is a contradiction/somersault one finds difficult to figure
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out. In any case, even if the trial judge after making the order calling for oral evidence discovered that it was mistakenly made, it does not bring the situation within the circumstances in which he could set aside his own decision. It is never part of our administration of justice that a Court shall sit on appeal over its own decision, whether or not the decision is right or wrong, simply because after making an order or giving a Judgment the Court becomes functus officio. See Adigun v. Attorney General, Oyo State (1987) 2 NWLR (Pt. 56) 197, (1987) 1 ALL NLR (Pt. 1) 238.
Before closing up on Issue One I find it pertinent to sound this admonition to trial Court Judges: Because the administration of justice does not permit a judge to have a double say on any judgment or decision once handed down, the facts of a case and the law applied must be profoundly reviewed before the judgment or decision is passed. The judgment or order of Court once passed is like a bullet which once fired cannot be recalled.
The conclusion which I find inevitable to arrive at is that the trial Judge erred in rescinding the order he made on 21st February, 2019 calling for
31
oral evidence and adjourning for judgment. Thus, this appeal succeeds on ground one.
Consequently, the order made by the trial Court on 7th March, 2019 rescinding the Courts earlier decision given on 21st February, 2019 calling for oral evidence is hereby set aside. Also set aside is the judgment of the trial Court delivered on 8th March, 2019, same based on an inconclusive proceeding. There shall be no order as to costs.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother JAMES GAMBO ABUNDAGA JCA. and I agree with my Lords reasoning and conclusion. Although a Court of law has an inherent jurisdiction to set aside its decision, it can only do so within limits permissible in law. Those limits have been stated in the lead judgment and I need not repeat them here. Simply because a Court has a change of mind about an earlier order it made is not reason enough to justify a willy-nilly setting aside of that earlier order. The setting aside of the earlier order of the lower Court in this case was wrong and cannot stand. For this reason and the more detailed
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reasons given in the lead judgment, this appeal has merit and is allowed.
DISSENTING JUDGMENT
SAIDU TANKO HUSSAINI, J.C.A. : I have read in advance the majority judgment just delivered by my Lord, James Gambo Abundaga, JCA with whom I am unable to agree with his reasoning and conclusion.
I will proceed therefore to state my opinion in this appeal case. It was commenced at the Federal High Court, Kano as a Pre-election matter. The said Court sitting in Kano on the 7th March, 2019 had reason to give a ruling by which ruling the Court rescinded an earlier decision or order which was directed on the parties herein to call oral evidence in addition to the affidavit evidence already before the Court. The same Court proceeded on the 8/3/2019 to deliver judgment in the case in Suit No. FHC/KN/CS/170 in which the appellant appeared as the 1st defendant while the 2nd and 3rd respondents appeared as the 2nd and 3rd defendants, respectively in an action commenced by the 1st respondent vide the Originating Summons filed in that Court on the 15th Nov, 2018.
The action was sequel to the primary election exercise
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conducted on the 4th October, 2018 for the selection of the member of the Kano State House of Assembly to represent GAYA Constituency in Kano State at the 2019 general elections.
The 2nd respondent had submitted the name of the Appellant Suwidi Mamuda Kademi to the 3rd respondent as the winner of that election in which the 1st respondent participated as a contestant among other persons.
The 1st respondent undoubtedly not happy with this development instituted action wherein he sought for the determination of five (5) questions. He further sought nine (9) reliefs. Those five (5) questions and nine (9) reliefs are all set out in the body of the Originating Summons and the supporting affidavit as well as the annexes attached thereto, (record pages 3-20). Added to this is the written address of Counsel in Support of the application.
The 1st, 2nd and 3rd defendants at the trial Court filed their respective counter affidavits and written addresses in opposition to the claim. In the judgment delivered on the 8/03/2019, the Federal High Court granted all the reliefs by way of the Order(s) drawn up at page 439 of the record of appeal.
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The appeal to this Court on four (4) grounds vide the Notice of Appeal dated the 8th march, 2019 and filed the same date is against that ruling/Order or judgment of the Federal High Court.
The four (4) grounds of appeal (without stating the particulars) are repeated here below:-
Ground One:
The trial Court misdirected itself in law when after it had made order directing the parties to call oral evidence to resolve conflicts in the affidavit evidence before it suddenly on 07/03/2019 for judgment against its earlier ruling.
Ground Two:
The trial Court erred in law when despite its earlier ruling that the affidavit evidence before it are conflicting coupled with an order to the parties to call oral evidence to resolve same held that Originating Summons is the proper procedure to commence such a hostile action.
Ground Three:
The trial Court erred in law when it held that the suit was not caught by the provision of Section 285 (9) of the Constitution of the F.R.N 1999 (as amended) and thereby assume jurisdiction.
Ground four:
The trial Court erred in law when in its
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judgment it made reference to and relied on the processes it has in the course of its proceeding struck out.
The appellant and the 1st respondent filed and exchanged their briefs of argument which include:-
a. Appellants Brief of Argument filed on the 2/4/19.
b. The 1st respondents brief of argument filed on the 8/4/19.
c. Appellants reply brief filed on the 17/4/19.
The 2nd and 3rd respondents in this appeal did not file any brief of argument. In his brief of argument the appellant presented four issues for determination at page 3 of the brief thus:-
1. Whether the trial Court was not in error when it set aside its earlier ruling for calling of oral evidence upon the application of 1st Respondent and proceeded for judgment depriving the Appellant right to be heard.
(Distilled from ground One)
2. Whether the trial Court was right after it had ruled that there were conflicts in affidavit evidence, subsequently held that 1st Respondent complaint in the Originating Summons was within the law.
(Distilled from ground Two)
3. Whether the trial Court did not draw a wrong inference
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from the Further and Better Affidavit evidence of 1st Respondent to come to the conclusion that the action was not caught by Section 285 (9) of the Constitution of the F.R.N as amended by 4th Alteration Act No. 2 of 2017.
(Distilled from ground Three)
4. Whether the trial Court was not in error when it set aside its earlier ruling for calling oral evidence upon the application of 1st Respondent and proceeded for judgment depriving the Appellant right to be heard.
(Distilled from ground Four)
The 1st respondent in his brief of argument presented three (3) issues at page three (3) of his brief thus:-
1. Whether the lower Court was right in setting aside its Ruling of 21st February, 2019, pursuant to an application of the 1st Respondent? (Issue 1 is distilled from Grounds 1 and 2 of the Appellants Notice of Appeal).
2. Whether the 1st Respondents suit before the lower Court was not statute barred? (Issue 2 is distilled from Ground 3 of the Appellants Notice of Appeal).
3. Whether the lower Court was right in holding that the affidavit and documentary evidence adduced by the Appellant and the 2nd
37
Respondent before it were contradictory and manifestly unreliable? (Issue 3 is distilled from Ground 4 of the Appellants Notice of Appeal).
I wish to adopt issues 1, 2, and 3 raised and contained in the appellants brief of argument and issue No. 3 raised and contained in the 1st respondents brief of argument as issue No.4.
A. Was the trial Court right in setting aside its Ruling of 21st February, 2019?
Appellants counsel in his attempt to provide answers to this question made submissions in his brief of argument as can be found at pages 3-6 of the brief. The long and short of those submissions is that the trial Court was in error when it rescinded its earlier order calling for oral evidence. He argued that the trial Court could not do so being already functus officio. He cited and relied on several authorities including:-Mobil Producing Nig. Ltd Vs. Uwemwdimo (2006) ALL FWLR (pt. 313) 116, B1. Lawal Vs Dawodu (1972) 8-9 SC 83; NICON Vs. P.I.E CO. Ltd. (1990) 1 NWLR (pt. 129)701; Obimonure V. Erinosho (1966) 1 ALL NLR 250; Oke v. Aiyedun (1986) 2 NWLR (pt. 23) 548
The 1st respondent however held a contrary
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opinion as expressed in his brief of argument at pages 3-8, by which the learned counsel for the 1st respondent invited our attention to the Notice of Appeal to submit that the Appellant did not appeal against the ruling of the 7th march, 2019 but the judgment delivered on 8th March, 2019. For this reason it was argued that this Court cannot consider any issue bordering on the ruling of the 7th March, 2019 to which there is no appeal. We were referred to the unreported decision of this Court in NDIC & ORS vs. Nwawka Appeal No. CA/K/425/2008 delivered on 25th October, 2013.
He argued in the alternative stating that the trial Court could not have become functus officio over a ruling made on a procedural issue as against a substantive issue. Hence in that circumstance, the trial Court was right to revisit that ruling and make any order in the interest of Justice.
He called in aid provisions of Order 56 Rule 1 of the FHC (Civil Procedure) Rules 2009. He argued further stating that the issue as between the appellant and the 1st respondent as to who between them won the primary election is an issue that can be resolved by reference to documentary
39
evidence and these documents he said are attached to the affidavit in support of the originating summons and the C/A of the 1st respondent in opposition hence the trial Court on that basis set aside its earlier decision of 21/2/2019.
I want to proceed straight away and address this question of the propriety or otherwise of the Court below revisiting its earlier decision. In doing that I want to refer to pages 411-412 of the record of appeal where the trial Court, on the 12/2/2019 called for oral evidence to be taken in the light of what the Court, had observed were some conflicting affidavit evidence supplied by parties to the suit; hence the Court adjourned further proceedings to the 26/2/2019 for that purpose. Sitting did not hold on that day until on the 7/3/2019 when the Court, on the application of counsel, took the decision thereby reviewing its earlier ruling of the 21/2/2019. In the ruling the trial Court held thus:-
After reviewing the facts of the case this matter can be resolved without calling oral evidence therefore the order calling evidence is hereby rescinded. The matter is adjourned to 8/03/19 for judgment.
This
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ruling form the basis for the appeal covered by ground 1 in the Notice of Appeal for which issue No. 1 was derived on the premise that the trial Court by the latter decision of the 7th March, 2019, the Court had reviewed the decision of the 21/2/2019.
There is a principle founded on public policy that there should be finality to all litigations. See:Adigun Vs. A/G, Oyo State (1987) 2 NWLR (pt. 56) 197, 2B; when a Court of law comes to the conclusion in its judgment, it is functus officio and the same Court cannot revisit that decision let alone review it.
This ground of complaint and the issue arising from it is not a challenge on the power of the trial Court to call for oral evidence in the face of conflicting affidavit evidence. By our law and procedure, a Court once confronted with conflicting affidavit evidence on crucial facts, the Court, for the purpose of resolving the conflict arising from those affidavit is enjoined to order for oral evidence to resolve the conflict.
That is the position even under our statute. Section 116 of the Evidence Act, 2011, Cap E14 provides that, …when there are before a Court, affidavits that are
41
irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence as to such facts, and shall hear any such oral evidence of the deponents of the affidavit and such other witnesses as may be called by the parties.
In the case Nagogo vs. CPC (2012) 14 NWLR (pt. 1321) 518, 536, this Court held thus:-
Where the facts in an affidavit and counter affidavit are in conflict substantially, oral evidence shall be required and given to resolve the conflict.
See further, the decision in Ghraizi Vs. Graizi (2017) ALL FWLR (pt. 893) 1335, 1366.
Procedurally therefore, the Courts, confronted by or with irreconcilable affidavit evidence of parties on both sides, shall resolve those conflicts by a resort to oral evidence of the deponents to those affidavits. The live question is whether a Court as in the instant case on appeal, can revisit its earlier decision and renege from it?
From a consensus of judicial opinions, a Court of Law cannot revisit and review its own final decision. See Nigerian Army Vs. Iyela (2008) 8 NWLR (pt. 1118) 115, 140; Aba
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South Local Govt. Vs. Nwajiobi (2008) 6 NWLR (pt. 1084); Joe Vs. Nzegwu (2001) 24 WRN 113; Alhaji Ahmed Co. Ltd Vs. A.I.B Ltd (2001) 10 NWLR (pt. 721) 391; Intra Motors Vs. Akinloye(2001) 6 NWLR (pt.708) 61. The authorities are legion but I will like to emphasise here that the principle which states that a Court in Functus Officio and thus, cannot revisit and review its own earlier decision applies to final judgments only.
As held in FBN Vs. T.S.A INDUSTIRES (2010) 15NWLR (Pt. 1216) 247 (SC).
A Court is said to be Functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, reopen or revisit the matter. Once a Court delivers its Judgment on a matter it cannot revisit or review the said judgment except under certain conditions….
On the same point see the decision in Dingyadi Vs. INEC (2011) LPELR 950(SC). This Court in Statoil Nig. Ltd Vs. Induction Nig Ltd & Anor (2012) LPELR- 7955 (CA) has held that;
The general Statement of the Law is that a Court is functus officio from reviewing or varying the form of its
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judgment after delivering final judgment and necessary consequential orders
This Court further held in Agbaso v. Ohakim(2011) LPELR- 8812(CA) that: by virtue of S.246 of the constitution, when judgment is given on the merits, the Court is functus officio, see Mohammed v. Mohammed Husseini (1998) 12 SCNJ 136,…. per Ogunwumiju, JCA.
A Judgment of law is final which brings to an end the rights of the parties in the action and disposes of the subject matter of the controversy or determines the litigation as to all parties on the merit. See: Gomez vs C&S (2009) 10 NWLR (pt. 1149) 223; Iwueke v. IBC (2005) 17 NWLR (pt. 955) 447. Thus the decision or order made on 21/2/2019 by the trial Court calling for oral evidence cannot, by any stretch of imagination be said is final or is a decision on the merits.
I want to submit however on the principle that a Court cannot revisit or review its own decision that, there are exceptional circumstances under which a Court may revisit and review its own decision as for instance under the slip rule to make certain corrections of accidental slip or errors or clerical
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mistakes. See:Nigerian Army vs. Iyela {supra}; Joe v. Nzegwu {supra}. Allegation of fraud, want of jurisdiction or excess of jurisdiction or cases of null judgments or error of judgment or some fundamental irregularities in the judgment are all instances under which a Court can revisit and review its own decision, See: Omotunde v. Omotunde (2001) 7 NWLR (pt. 1718) 252, 277; In Tomtec Nig. Ltd vs. FHA (2010) 16 WRN 24, 45-46; it was held that:
it is settled law that Court of record have the inherent jurisdiction to act aside its judgment/decision/order in appropriate cases or under certain circumstances which include:-
1. The judgment was obtained by fraud or deceit either in the Court or of one or more of the parties,
2. The judgment is a nullity
3. It is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it
4. The judgment was given in absence of jurisdiction
5. Where there is a fundamental irregularity
The trial Court at pages 413414 of the record had a second thought over the earlier order or decision it gave to call for oral
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evidence whereas by the documentary evidence already before it the Court could work at them to resolve issues of conflicting affidavit evidence without a resort to oral evidence.
I want to reiterate the fact that the order to call for oral evidence cannot be final judgment in the context of the decisions referred to earlier. That calling for oral evidence the conflict in the affidavit evidence was meant to pave way for a final decision or judgment of that Court hence the trial Court could not have been functus officio over that ruling or order. It is a ruling or order which the Court below can revisit and review as it rightly did especially in the face of documentary evidence attached to the affidavits before that Court. After all, documentary evidence is the best evidence in proof of a case, See Attorney General Rivers Vs. Attorney General Bayelsa (2013) 3 NWLR (pt. 1340) 123 (SC), Ogologo Vs. Uche (1998) 11 NWLR (pt. 572) 34.
Additionally, provisions under Order 56 Rule 1 of the Federal High Court (Civil Procedure) Rules, 2009 enjoin the Court below to make any order it consider necessary for the attainment of justice. The Rule provides thus:<br< p=””>
</br<>
46
…. Subject to particular rules, the Court may in all cause and matters make any order which it considers necessary for doing justice, whether the order has been expressly asked for by the person entitled to the benefit of the order or not
Assuming but without conceding that the decision made on the 7/3/2019 was a final order or judgment, that order to call for oral evidence had not been perfected as at the 21st March, 2019, when the trial Court revisited and reviewed same.
In Anyaoke v. Adi (1985) 1 NWLR(pt.2) 342, the Apex Court per Irikefe, JSC held thus:-
A judge at the time of delivering judgment in a case is not functus officio until the orders made therein are perfected see further decision in Cheesemar Vs. Bowaters United Kingdom Paper Mills Ltd.(1971) 3 All NER 513.
The word Perfect used as a verb, according to Longman Dictionary (New Edition), means to make something as good as you are able to page 1290.
As at the 7th march, 2019 the Order issued by the trial Court on 21/2/19 had not been carried out hence on the authority of Anyaoke Vs. Adi (supra),the
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Court could revisit and review that order or ruling.
Issue No. 1, in effect is resolved in favour of the 1st respondent and against the appellant.
Under Issue No. 2 in the appellants brief of argument, the counsel appearing for him in his brief frowned at the form or the way and manner the action was brought by way of originating summons whereas the procedure by way of writ of forms should have been employed in the light of the hostile nature of the proceedings, and he relied on Famfa Oil Ltd v. A/G of the Federation (2003) FWLR (pt. 184) 195. He argued that the trial Court having itself observed that both affidavits, for and against the originating summons were in conflict with the other, ought at that point to have ordered for pleadings to be filed. Relying on Falobi v. Falobi (1976) 9 -10 SC 15 he submitted that oral evidence will be called to resolve conflicts only in interlocutory applications and not in proceedings such as this, commenced by Originating Summons.
The learned 1st respondents Counsel, in consequence questioned the propriety of the proceedings held on the 7/3/2019 at page 413 of the record of appeal, the Court having
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thus rescinded its earlier order to call for oral evidence, the Court lacked jurisdiction and power to SUO MOTU reconcile conflicting affidavit evidence as the trial Court purportedly did of pages 426 and 436 -439 in its judgment in the record of appeal.
He Cited and relied on the decision of this Court in ASONYE v. PEGD. TRUSTEES CACN (1995) 2 NWLR (pt.379) 623, 634, to urge us to resolve issue No. 2 in favour of the Appellant.
Issue No.2, by my understanding is an off-shoot of issue No. 1 of which I have devoted considerable time and attention in reaching a conclusion. The law is this:, that in a situation where there are conflicting affidavit evidence, the Courts will normally call for oral evidence to resolve the conflict. It is equally the law that a Court confronted with such situation can still dispense with calling oral evidence, if such conflict can be resolved by making reference to some documents filed before it which would assist in resolving such conflict. See: Kayode v. APC(2014) LPELR 23092 (CA), the Court in that circumstances can SUO MOTU resolve the conflicting affidavit evidence by resorting to authentic documentary
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evidence before it. See Ezegbu vs. First African Trust Bank Ltd; (1992) 1 NWLR (pt. 220) 699, 720; in that situation, there is no need for oral evidence. See Fashanu vs. Adekoya (1974) 1 All NWLR (pt. 1) 35, 48; Lijadu v. Lijadu(1991)1 NWLR (pt. 169) 627, 649. In the light of the very Lucid decisions referred to above, I find it difficult to agree with learned counsel for the appellant on this point. The trial Court rightly rescinded its earlier decision to call for oral evidence in the face of the authentic documentary evidence before it.
Issue No. 2 is resolved against the appellant.
Next is Issue No 3, the question posed under issue 3 is whether the suit or action was not caught by Section 285 (9) of the Constitution of FRN, as amended, the 4th Alteration Act No. 2 of 2017. The question Whether or not the Suit brought by the 1st respondent was statute barred and therefore incompetent, was raised by the Appellant by way of preliminary objection vide the motion or Notice of Objection filed by him on the 30/12/2018 at page 200 of the record. After taking the motion or application the trial Court in its judgment delivered on the 8/3/2019 overruled the
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objection stating that the suit was not only properly commenced by Originating Summons but action so commend was within the time frame allowed by the law/Constitution.
It is important to note that this ruling on the Preliminary Objection was incorporated into the body of the judgment delivered on the 8/3/2011 as aforesaid hence the need to seek for extension of time to appeal the ruling did not arise. The appeal was lodged the same date the ruling/judgment was delivered. The procedure by which a ruling in an interlocutory application is incorporated into the Notice of Appeal against the final judgment of Court was approved in the case of Terverkakih Vs. PDP & 3 ORS(2014) 15 NWLR (PT. 1430) 374, 407, hence the contention by learned 1st respondents counsel that there is no appeal against that ruling, is not correct. To the contrary, Ground 3 in Notice of Appeal is valid and competent. So also is Issue No…. derived from it.
In determining whether or not an action is statute barred, the need arise to have a look at the writ of Summons and the statement of claim to ascertain when indeed the cause of action arose. In a matter commenced by
51
Originating Summons, it is the affidavit in support of the Originating Summons that must be looked into and as well as other or further affidavit in support of that process.
I do not agree with the submission made by the learned counsel in the 1st respondent that the further and better affidavit in support of the Originating Summons constituted an amendment to the supporting affidavit and thus an invalid process in so far as leave of Court was not obtained to do so. Hence the trial Court ought not to have acted on same.
I should say straight away in response to that submission of counsel that the additional affidavit filed by the 1st respondent on 23/1/19 as further and better affidavit in support of the Originating Summons is headed Further and better affidavit and not as an amended affidavit. See pages 326 -329 of record. In any case the Courts should not be dragged into the arena of conflict between the parties when by the record before us at page 408, the party sought and was granted extension of time wherein he filed a further and better affidavit. He did not need the leave of Court to do what he needed to do by law. The submission of counsel
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for the 1st respondent in this regard is discountenanced.
Having therefore taken this position, the question whether the Plaintiff/1st respondent filed his action within time can be resolved by reference to paragraphs 17, 18,and 19 of the Further and Better, affidavit at page 329 of the record wherein it is deposed that:-
17. That on 3rd November 2018, myself and some other contestants at the primary election of 4th October 2018, were called to the Government House Kano State and informed that a new decision was taken on 18th October 2018 to substitute our name.
18. That after I was informed on 13th November 2018 the names of all the candidates were displayed by the 3rd Respondent.
19. That as the person who won the primary election and the name of the other person was submitted to the 3rd defendant as the 2nd defendant nominees and there upon I decided to institute this action and filed same on the 15th November, 2018.
Going by this uncontradicted affidavit evidence, the cause of action arose on the day or date it came to the knowledge of the 1st respondent that his name has been replaced by the of someone else as
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winner of the primary election. This information reached him on 3rd Nov. 2018. The suit was filed on the 15/11/18.
Between 3rd Nov, 2018 and 15th Nov, 2018 is a period of about 13 days, a day less than the 14 days limited for filing actions of this nature under S. 285 (9) of the Constitution, 4th Alteration Act.
Issue No. 3 is resolved against the appellant.
Issue No. 4
I want to adopt the 1st respondents issue no.3 as issue No. 4 in addressing this appeal. The said issue read thus:
whether the lower Court was right in ruling that the affidavit and documentary evidence addressed by the appellant and the 2nd respondent before it were contradictory and manifestly unreliable (distilled from ground 4 of the appellant’s Notice of Appeal).
To this end the appellant on the one hand and the 1st respondent and his counsel on the other made submissions in their respective briefs of argument. The appellant has submitted that the Court below could not have acted on the document and process not before it to reach a decision, in this case, the counter affidavit filed on the 21/01/2019.
The 1st respondent on his part
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has argued stating among other things that the basis for the Court rejecting Appellants case or position was due to the contradiction in the affidavit evidence with the documentary evidence supplied by the Appellant as the 1st defendant before the trial Court. On this point the Court below made a significant finding of fact and held thus at page 435 436 of the record. See…. The 1st Defendant in his counter affidavit deposed to by one Mustapha Mohammed a legal practitioner deposed to facts that the 1st Defendant is a registered member of the 2nd Defendant and participated in the primary election into the State House of Assembly for Gaya Constituency in Kano State.
Now the documents exhibited by the 1st Defendant in proof of the facts depose to are marked Exhibit A1-10 and Exhibit ”B respectively. Looking at Exhibit A1-10 of the Defendant’s counter affidavit, it is the result sheet of the 10 ward congresses in Wudil Constituency and not Gaya Constituency in Kano State. Exhibit ”B is the result sheet relied upon and bears the name Ibrahim Ahmed Gama as the winner of that primary election and not
55
the 1st Defendant Suwidi Mamuda Kademi……
I am mindful of the fact that SUWIDI MAMUDA KADEMI is before us as the appellant in this appeal case. He needs be reminded that the documents exhibited by him in support of his contention that he won the primary election of the 4/10/18 do not in fact relate to the election he professed to have won. Those documents i.e Exhibits A110 are the result sheets of the ward congress for Wudil Constituency and not GAYA Constituency and thus the documentary evidence supplied by the appellant contradict his affidavit evidence. A party cannot lead evidence to contradict the contents of a document. This is even more so in a case like this where the deposition in the affidavit evidence is in conflict with the document attached to it. The affidavit in that circumstances should be discountenanced or rejected. See,Onyemelukwue vs. West African Chemical Company Ltd. (1995) 4 NWLR (pt. 387) 24,55; Duru vs. Nwoke (1994) 3 NWLR (pt. 335) 707, hence the ruling made at the Court below on this point is unassailable. Issue No.4 is resolved against the appellant hence the appeal against the judgment of the FHC, Kano
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delivered on 8th march, 2019 in suit No. FHC/CS/170/2018, is dismissed.
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Appearances:
Adamu Abubakar, Esq.For Appellant(s)
M.A. Lawan, Esq. for the 1st RespondentFor Respondent(s)
>
Appearances
Adamu Abubakar, Esq.For Appellant
AND
M.A. Lawan, Esq. for the 1st RespondentFor Respondent
