UGBABE FURNITURE COMPANY LIMITED & ORS v. AFRICAN CONTINENTAL BANK PLC & ANOR
(2017)LCN/10174(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of July, 2017
CA/J/341M/2016(R)
RATIO
SETTING ASIDE OF JUDGMENT: POWERS OF THE COURT OF APPEAL; WHETHER A TRIAL COURT CAN SET ASIDE ITS JUDGMENT
First and foremost this Court is set up by the Constitution of the Federal Republic of Nigeria Section 6(1) and the Court of Appeal Act, 2010 (as amended). The Court of Appeal Act provides in Section 15 as follows:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or account to be made or taken, and generally SHALL have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purpose of rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction order the case to be reheard by a Court of competent jurisdiction.”
In the case ofMohammed v Husseini (1998) 12 SCNJ P. 163 – 164 (1995) LPELR 1896 (SC) gave the interpretation of Order 1 Rule 22 of the Court of Appeal Rules, 1981.
Order 1 Rule 22 of the Court of Appeal provides as follows:
“After an appeal has been entered and until it has been finally disposed of the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in those Rules, every application therein shall be made to the Court below, but any application may be made to the Court below, but any application may be filed in the Court below for transmission to the Court.”
What it means therefore is that it is settled law that until the appeal is entered in the Court below, that Court has no control over the proceedings as between the parties. It is settled law that a judgment of a trial Court is normally given after a due satisfaction of the applicable rules, and cannot be validly set aside only on appeal. See First Bank of Nigeria Ltd v I.N. Khaladu & Anor. (1993) 9 NWLR (Pt. 315) 44 at 57 and Shahimi v Akinola (1993) 5 NWLR (Pt.294) 43 at 447 per Onu JSC.
Power of Court:
The principle is that unless and until the Court pronounced a judgment on merit or by consent it retains the power to set aside its own default judgment. The power to do so is discretionary which has to be exercised judiciously, guided by the following principles pronounced by this Court in Williams & Ors v Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145:
(1) The reasons for the applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence.
(2) Whether there has been undue delay in making application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists;
(3) Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable;
(4) Whether the applicant’s case is manifestly unsupportable; and
(5) Whether the applicant’s conduct throughout the proceedings, that is from the service of the writ upon him to the date of judgment, has been such as to make his application worthy of a sympathetic consideration. See also Idam Ugwu & Ors v Nwaji Aba & Ors (1961) 1 All NLR 438; Adebayo Doherty v Ade Doherty (1964) NMLR 144 at 145; Momah v Gulf Insurance Corporation (1975) 1 NNLR 184 at 186; Khawani v Elias (1960) SC NLR 516; Evans v Bartlam (1937) 2 All ER 646 at 650 per Wali JSC.
In the same case Mohammed v Husseini (supra) Mohammed JSC stated:
“The Latin expression functus officio simply means task Performed.”
Therefore applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words once a Judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter. See Emeka Onyemobi v The Hon. President of Onitsha Customay Court & Ors. (1995) 3 NWLR (pt. 381) 50. However, it is important to observe that a judge is funtus officio if he gives judgment on the merits. A judgment in default is not a judgment “on the merits.” See Oppenheini V Haneef (1922) 1 A.C. 482 and UTC (Nig) Ltd v Pamotei (1989) 2 NWLR [103) 244: (1989) MSCC (pt. l) at 558 559.
Now turning to this application, I agree with the learned counsel for the 1st Respondent that this Court cannot set aside its own final judgment under any Rules or Laws under the Federation of Nigeria.
The inherent powers of this Court cannot be exercised outside its general powers as laid down in Section 15 of the Court of Appeal Act, 2010 (as amended). From judicial authorities, it is clear that Section 15 of the Court of Appeal Act, 2010 (as amended) limits the extant jurisdiction of this Court NOT TO DO any act after its final judgment in any case.
Section 15 of the Court of Appeal Act, 2010 states:
“The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal………….which the Court of Appeal thinks fit to determine before final judgment in the appeal……”
Clearly undoubtedly from the above Section 15 of the Court of Appeal Act 2010, this Court cannot after final judgment make any order or orders in respect of any matter where final judgment has been delivered.
The 1st Respondent’s contention that this motion is still born, is the correct position of the law. This motion to set aside and/or review the final judgment of this cannot be granted. From the Supreme Court decision inMohammed v Husseini this Court having delivered final judgment in the appeal on the 15th December 2015, is functus officio. It is settled law that once there is a determination on an issue, the trial Court is no longer competent to revisit such matter except there is a statutory provision allowing it to do so. See the cases of A.A. Ahmed & Co Ltd v A.I.B. Ltd (2001) F.W.L.R. (pt. 39) 1556 at 1569; Mohammed v Husseini(1998) 12 SCNJ 163 – 164. PER FATIMA OMORO AKINBAMI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1. UGBABE FURNITURE COMPANY LIMITED
2. GBABE CONSTRUCTION COMPANY LIMITED
3. CHIEF ISAAC UGBABE – Appellant(s)
AND
1. AFRICAN CONTINENTAL BANK PLC.
2. A. N. UBUNAMA – Respondent(s)
FATIMA OMORO AKINBAMI, J.C.A.(Delivering the Lead Ruling): This is a Ruling on the application seeking an order to set aside ex debito justitiae the judgment of this Court, delivered on the 15th day of December, 2015 allowing the appeal against the judgment of the lower Court dated February 22nd, 2013.
The order seeks a rehearing of the appeal on the basis of the material exhibited to the affidavit in support of the notice of motion. The application was brought by way of Motion on Notice under Order 7, Rules 1 & 10(1), Order 15 Rules 1 & 3 of the Court of Appeal Rules, 2011 (as amended), Section 6(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and under the inherent jurisdiction of this Honourable Court.
The prayers are as follows:
1. AN ORDER granting Extension of time to the 2nd Respondent/Applicant within which to apply and/or seek LEAVE to set aside the judgment of this Honourable Court delivered on the 15th day of December, 2015 in Appeal No. CA/J/192/2013.
2. AN ORDER granting LEAVE to the 2nd Respondent/Applicant to apply to set aside the Judgment of this Honourable
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Court delivered on the 15th day of December, 2015 in Appeal No. CA/J/192/2013.
3. AN ORDER granting extension of time to the 2nd Respondent/Applicant within which to apply to set aside the judgment of this Honorable Court delivered on the 15th day of December, 2015 in Appeal No. CA/J/192/2013.
4. AN ORDER setting aside the judgment of this Honorable Court delivered on the 15th day of December, 2015 in Appeal No, CA/J/192/2013.
5. A CONSEQUENTIAL ORDER striking out the Appellants/Respondent’s Notice and Grounds of Appeal dated and filed 28th February, 2013 and by extension, Appeal No: CA/J/192/2013 as incompetent and being a nullity ab initio.
The grounds for the application are as follows:
(1) The Notice and Grounds of Appeal dated and filed 28th February, 2013 in Appeal No. CA/J/192/2013 was filed after the death of the 3rd Appellant/Respondent.
(2) The said Notice and Grounds of Appeal dated and filed 28th February, 2013 in Appeal No. CA/J/192/2013 culminating in the judgment of this Honourable Court delivered on 15th December, 2015 was delivered after the death of the 3rd Appellant/Respondent and as such was/is a nullity.
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(3) The counsel of the Appellants/Respondents owed this Honourable Court a duty to inform this Honourable Court the death of the 3rd Appellant/Respondent but the Counsel never did.
(4) The 2nd Respondent/Applicant only got to know of the death of the 3rd Appellant/Respondent vide internet on 29th August 2016.
(5) Because the 2nd Respondent/Applicant only got to know of the death of the 3rd Appellant/Respondent on 29th August 2016, which further needed independent confirmation, he could not timeously apply to set aside the judgment of this Honourable Court, delivered on 15th December, 2015 in Appeal No. CA/J/192/2015 until now hence the need for LEAVE Sought.
(6) The 1st Respondent was already non-existent as at 28th February, 2013 when the Appellants/Respondents filed their Notice of Appeal in this case.
STATEMENT OF MATERIAL FACTS
This case was originally filed by the 1st Appellant/Respondent before the lower Court against the 1st Respondent on 12th May, 1994 vide a specially endorsed Writ of Summons before High Court of Justice Plateau State in Suit No: PLD/J288/94. See Exhibit “F” attached to the Further and Better Affidavit in
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support of the Motion on Notice. Subsequently, the 2nd and 3rd Appellants/Respondent were joined vide a Motion dated 23rd June, 1994 but filed 5th July, 1994 as Co-Plaintiffs (See Exhibit “G” attached to the Further and Better Affidavit in support of the Motion on Notice). So also, the 2nd Respondent/applicant was joined as party interested vide a Motion on Notice dated and filed 13th March, 1995. See Exhibit “H” attached to the Further and Better Affidavit in support of the Motion on Notice.
Sometime in 1980, the 1st Appellant/Respondent secured loan facilities from the 1st Respondent. As security for the said loan facilities, the landed property covered by Certificate of Occupancy No. BP1370 and dated 12th day of August, 1976 granted by Plateau State Government to the 3rd Appellant/Respondent, Chief Isaac Ugbabe and who was the Managing Director of the 1st and 2nd Appellants/Respondent at the material time was mortgaged to the 1st Respondent. For good measure, a Deed of Legal Mortgage was executed in favour of the 1st Respondent.
?As it turned out, the 1st Appellant/Respondent defaulted in its obligation to the 1st Respondent with respect to the said credit
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Facilities. Consequently, the 1st Respondent sold the landed property covered by Certificate of Occupancy No. BP1370 to the 2nd respondent/Applicant sometime in 1993. A Deed of Legal Mortgage was executed in favour of the 2nd Respondent/Applicant by the 1st Respondent sometime in 1994. See Exhibit “1” attached to the Further and Better Affidavit in support of the Motion on Notice. Meanwhile, as a pre-emptive measure against the 1st Respondent’s exercise of its right as unpaid mortgagee, the 1st Appellant filed an action against the 1st Respondent. The 2nd Respondent/Applicant upon being joined aforesaid as a party interested Counter-Claimed against the Appellants/Respondents.
Thereafter, the case of the Appellants/Respondents was dismissed by the lower Court given the unexplainable absence of the Appellants/Respondents and their counsel from Court whereupon the Counter-Claim of the 2nd Respondent/Applicant was accordingly heard and the lower Court entered judgment on 22nd February, 2013 in favour of the 2nd respondent/applicant.
?Dissatisfied with the judgment of the lower Court, the Appellants/Respondents filed an appeal on 28th February, 2013 to
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this Honourable Court vide Notice of Appeal containing three (3) grounds against the 1st Respondent as well as the 2nd Respondent/Applicant. See Exhibit “E” attached to the Affidavit in support of the Motion on Notice.
After the Notice of Appeal of the Appellants/Respondents was filed learned counsel to the Appellants/Respondents filed two separate Motions on Notice on two different occasions on behalf and/or supposedly on the authority of the Appellants/Respondents to regularize the Record of Appeal and the Appellants’ joint Brief of Argument out of time. See Exhibits “J” and “K” attached to the Further and Better Affidavit in support of the Motion on Notice. Thereafter, the 2nd Respondent/Applicant filed his Brief of Argument on 8th April, 2015. The Appellants/Respondents also filed Appellants’ joint Reply Brief on 29th April, 2015. The 1st Respondent did not file any Brief.
On 15th December, 2015, this Honourable Court delivered its judgment in favour of the Appellants/Respondents. See Exhibit “C” attached to the Affidavit in support of the Motion on Notice. However, on 29th August, 2016, the 2nd Respondent/Applicant got to know that the 3rd
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Appellant/Respondent had died since 2011. See Exhibits “A” and “B” attached to the Affidavit in support of the Motion on Notice In essence; the death of the 3rd Appellant/Respondent, Chief Isaac Ugbabe in 2011 predated the filing of the appeal on 28th February, 2013. Worse still, Counsel to the Appellants/Respondents inexplicably failed to notify the Court and/or other parties in the appeal of the death of the 3rd Appellant/Respondent, Chief Isaac Ugbabe as mandatory required by Order 15, Rule 1 of the Court of Appeal Rules, 2011 during the pendency of the Appeal and particularly before the judgment was delivered on 15th December, 2015.
This instant application is being brought having regard to the 2nd Respondent/Applicant’s discovery on 29th August 2016 of the death of the 3rd Appellant/Respondent since 2011 before the Appeal in Appeal No. CA/J/192/2013 was filed on 28th February, 2013 and the subsequent judgment of this Honourable Court which was delivered on 15th December, 2015.
The foregoing constitutes the material facts upon which this application is premised. Being an application to set aside the judgment of this Court, it is only
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relevant to state so much of the facts of the case as is necessary for the determination of this application.
This Court heard the appeal. In a unanimous judgment the Court allowed the appeal. The application before this Court is to set aside this judgment delivered on the 15th day of December, 2015.
A consequential Order striking out the Appellants/Respondents Notice and Grounds of Appeal dated and filed 28th February, 2013 and by extension Appeal No. CA/J/192/2013 as incompetent and being a nullity ab initio.
ARGUMENTS OF COUNSEL
Learned counsel for the 2nd Respondent/Applicant and Respondent filed briefs of argument in this application. Counsel adopted and relied on their briefs of argument in presenting their respective arguments before us, on the 22-05-2011.
In presenting his argument, learned Counsel for the 2nd Respondent/applicant Mr. P. A. Akubo, SAN, posed the question “whether the Notice of Appeal filed by the Appellants/Respondents on 28th February, 2013 and by implication the judgment of this Honourable Court delivered on 15th day of December, 2015 are not all together a nullity which this Honourable Court is capable
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of setting aside having regard to the fact that the 3rd Appellant/Respondent in this Appeal was long dead before the Appeal was filed particularly having regard to the provisions of Order 15, Rule 1 of the Court of Appeal Rules, 2011.
“Whether the legal status of the 1st Respondent in this Appeal is itself not a disqualifying factor that renders the judgment of this Honourable Court delivered on 15th day of December, 2015 null and void.”
The applicant’s counsel distilled two issues for the determination of this appeal as follows:
1. Whether the Notice of Appeal filed by the Appellants/Respondents on 28th February, 2013 and by implication the judgment of this Honourable Court delivered on 15th day of December, 2015 are not all together a nullity which this Honourable Court is capable of setting aside having regard to the fact that the 3rd Appellant/Respondent in this Appeal was long dead before the Appeal was filed particularly having regard to the provisions of Order 15, Rule 1 of the Court of Appeal Rules, 2011.
2. Whether the legal status of the 1st respondent in this Appeal is itself not a disqualifying factor that renders the
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judgment of this Honourable Court delivered on 15th day of December, 2015 null and void.
The 1st respondent counsel filed the Brief of Argument on the 14-04-2017 deemed on the 16-03-2017. He submitted two issues for the determination of this appeal as follows:
(a) Whether this Court can set aside its own final judgment in Appeal No. CA/J/192/2013 under any extant rules and/or laws under the federation of Nigeria? Our answer is “No”.
(b) Whether Appeal No. CA/J/192/2013 can be maintained after the death of the 3rd Appellant before judgment was delivered. Our answer is in the affirmative “YES”.
(c) Whether the change of name of 1st Respondent and the subsequent non-NOTIFICATION OF THIS CHANGE OF NAME TO THE COURT IS FATAL TO THE judgment of this Court delivered on 15th December, 2015. Our answer is “NO”.
The issues distilled by the 1st Respondent in my view encapsulates the 2nd Respondents/Applicant’s issues. I will determine this application on the 1st Respondent’s issues.
Applicants counsel P.A. Akubo, SAN, in arguing issue 1 referred to the Affidavits of the 2nd Respondent/Applicant in support of the application, paragraphs 3
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(d), (g), (h), (i), (j), (k), (l). The SAN, also referred to the 2nd Respondent/Applicant’s Further and Better Affidavit upon receipt of the Appellants/Respondents Counter Affidavit deposed to on 3rd day of February, 2017 but served on the 2nd Respondent/applicant in opposition to his application. Paragraphs 4(i), (j), (l), (m), and (n) of the Further and Better Affidavit are very much relevant.
The SAN submitted that the Appellants 17 paragraph counter affidavit did not rebut and/or controvert paragraph 3(d) (g) (h) (i) (j) (k) (l) of the 2nd Respondent/Applicant’s Affidavit. That there is no denial whatsoever of those paragraph or any paragraphs of the Affidavit for that matter. The 2nd Respondent/Applicant submitted that the implication is that paragraphs 3(d) (g) (h) (i) (j) (k) and (l) of the Affidavit deposed to on 5th day of December, 2016 ought to be deemed as conceded and/or unchallenged by the Appellants/Respondents having not been denied. It is trite law that facts in an Affidavit not controverted and/or challenged are deemed conceded. See the case of E.S.U.S.T v. I.J.M.E Ltd (2010) 11 NWLR (PART 1205) 297 at 319 para E; RE: Amolegbe (2014) 8
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NWLR (PART 1408) 76 at 96 para B.
The SAN reiterated the fact that counsel to the Appellants/Respondents was not told about the death of 3rd Appellant/Respondent. He submitted that, that fact was pretentious and self defeating. The law was stated by SAN, that there is no duty on any Court to do justice between the living and the dead and that dead men do not appeal. He cited the case of Ezenwosu v Chukwu (1957) 1 NWLR (PART 81) 16 at 182 paragraphs G-H; APC v INEC (2015) 8 NWLR (PART 1462) 531 at 565; Nzom v Jinadu (1987) 1 NWLR (PART 51) 533, Eke v Ogbonda (2006) 18 NWLR (PART 1012) 506 at 526 para A-D; Ogwe v I.G.P (2015) 7 NWLR (PART 1459) 505 at 530 para D-F; Chime v Ude (1996) 7 NWLR (PART 461) 379; Obioha v Ibero (1994) 1 NWLR (PART 322) 503 at 523; Skenconsult (Nig.) Ltd v Ukey (1981) 1 SC 16.
On the second ambit of this issue, that is the bounding duty and/or burden placed on the Appellants/Respondents counsel to notify the Court of the death of the 3rd Appellant Respondent as envisaged by Order 15, Rule 1 of the Court of Appeal Rules, 2011. SAN cited the case ofNwankwo v Yar’Adua (2010)12 NWLR (PART 1209) 518 at 588, Abiodun v A.G.
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Federation (2007)15 NWLR (PART 1057) at 359; Afribank (Nig.) Plc v. Akwara (2006) 5 NWLR (PART 974) 619 at 646; G.M.O.N & S Co. Ltd v Akputa (2010) 9 NWLR (PART 1200) 443 at 474.
The SAN submitted that the consequence of the provision of Order 15, Rule 1 of the Court of Appeal Rules is that the failure of learned counsel to the Appellants/Respondents to comply with Order 15, Rule 1 vitiates the Judgment of this Honourable Court delivered on 15th day of December, 2015. He urged the Court to so hold.
It was submitted further by SAN, that the pith and substance of the 2nd Respondent/Applicant’s submission on this issue is that the filing of the appeal of the Appellants/Respondent in 2013 when the 3rd Appellant/Respondent had already died in 2011, renders the Notice of Appeal filed on 28th February, 2013 a nullity. Consequently, the Judgment of this Court delivered on 15th day of December, 2015 is rendered null and void hence ought to be set aside.
The SAN, then submitted that Notice of Appeal is the fountain head of an appeal. He cited the case of Nwoko v Azekwo (2012) 12 NWLR (PART.1313) 151 at 170 para E-F; Lastma v Esezoobo (2012) 3 NWLR
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(PART 1286) 49 at 54 para H.
On Issue 2, SAN gave some salient facts of the case that gave rise to this appeal. This case was originally between the 1st Appellant and the 1st Respondent as Plaintiffs and Defendant respectively. By a Motion on Notice dated and filed 13th March, 1995 the LEAVE of the lower Court was sought to join the 2nd Respondent/Applicant as the 2nd Defendant who maintained a counter-claim against the Appellants/Respondent. The case of the Appellants/Respondents was dismissed by the lower Court on 1st March, 2007, and thereupon the counter-claim of the 2nd Respondent/Applicants fixed for hearing. Consequently judgment was entered in favour of the 2nd Respondent as per the counter-claim on 22nd February, 2013. Aggrieved with the judgment of the lower Court, the Appellants/Respondent filed an appeal to this Court on 28th February, 2013. It was reiterated by SAN, that the contention which this issue seeks to address is on the legal status of the 1st Respondent who was the 1st Defendant at the lower Court. The SAN posed the question whether the judgment of this Court delivered on the 15th December, 2015 legally binds a non-existent party?
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The SAN, submitted that the implication of paragraph 4(k) of the Further and Better Affidavit in support of the Motion on Notice is that AFRICAN CONTINENTAL BANK PLC having merged with other banks and transformed into SPRING BANK PLC; it can neither sue nor be sued in its former name having regard to its change of nomenclature. SeeAfrican Continental Bank Plc v ACB INTERNATIONAL BANK PLC (2016) 18 NWLR (PART 1544) 245 at 260 para L-R. It was noted by SAN, that the case at hand, the Appellants/Respondents filed that appeal on 28th February, 2013 against the 1st respondent African Continental Bank Plc whose legal existence had since terminated. He submitted that an appeal against a nonexistent party is invalid. He cited the cases of Chief John Omokhafe v Chief John Esekhomo (1993)8 NWLR (PART) 309) 58; S.G.B. Ltd v Buraimoh (1991)1 NWLR (PART 168) 428 at 434; ITJCL v Oki (2010)1 NWLR (PART 1176) 616 at 624; Gbagbarigha v Toruemi (2013) 6 NWLR (PART 1350) 289 at 306; Z.P Ind. Ltd v Samotech (2007) 16 NWLR (PART 1060) 315. Finally, SAN submitted that the cumulative effect of the foregoing submission is that the inexplicable failure of the Appellant/Respondents to
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initiate this Appeal against a cognizable and/or existent party in law renders the appeal null and void. SAN, urged this Court to set aside the judgment delivered on 15th December, 2015 in favour of Appellants/Respondents having been founded upon an incompetent appeal is rendered null and void and such ought to be set aside.
The 1st Respondent in reply, in Issue 1
“Can this Court set aside its own final judgment in Appeal No. CA/J/192/2013 under any Rules and Laws under the Federation of Nigeria.”
He answered in the negative. He first examined the Rules and/ or laws under which this application is brought under.
He cited Section 6(1)…. of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which vested the inherent powers of this Court. The inherent Judicial powers of this Court, learned counsel submission are circumscribed by the Laws of the Federation of Nigeria establishing this Court, and in this case, the Court of Appeal Act 2010 (as amended). The Judicial powers of this Court is vested in accordance with Section 6(5) (b) of our Constitution and Section 6(6) (g) of our Constitution went further and stated thus:
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“The judicial powers vested in accordance foregoing previous of this section.
[a] Shall extend, notwithstanding anything to the contrary, in this Constitution to all inherent powers and sanctions of a Court of law.”
Learned counsel submitted that inherent powers of this Court cannot be exercised outside its general powers as laid down in Section 15 of the Court of Appeal Act, 2010 as amended, Section 15 of the Court of Appeal Act 2010 limits the extant jurisdiction of this Court Not To Do any act after its final judgment in any case. Court of Appeal Act, 2010 in part states thus:
“The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal…… which the Court of Appeal thinks fit to determine before final Judgment in the appeal ……”
The learned counsel to the 1st Respondent Prince A.M.G. Anakwe referred to the motion as being still born. This motion to set aside and/or review the final judgment is belated both in law and in equity. In that this Court is functus officio having delivered its final judgment since 15th December, 2015. That it is now settled law
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that “Once there is a determination on an issue, the trial Court is no longer competent to revisit such matter except there is a statutory provision allowing it to do so”. He cited the case of A.A. Ahmed & Co. Ltd v A.I.B. Ltd (2001) ALL FWLR (Pt.39) page 1 1556 and paras F-G Mohammed v Husseini at (1998) 12 SCNJ.
Learned counsel on Issue 3 “Whether appeal No. CA/J/192/2013 can be maintained after the 3rd Appellant died. His answer is in the affirmative “YES”. He stated that the 1st and 2nd Appellants are surviving parties in the trial suit and in this appeal. He cited Order 11 Rule 36 of the Plateau State High Court (Civil Procedure) Rules 1987;
“If there be two or more plaintiffs or defendants and one dies and if the cause of action survives to the surviving plaintiff or plaintiffs alone, or against the defendant or defendants alone, the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, and against the surviving defendant or defendants.”
It was submitted by learned counsel that the 1st and 2nd Appellants are surviving Plaintiffs. And each of these Appellants in this appeal severally has a Constitutional right to
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appeal and maintain this appeal under Section 241, 242, and 243 of our Constitution cited above. That although the Rules of this Court under Order 15 Rule 1 enjoins a counsel representing a party to an appeal to give immediate notice of the death of that party to the Court as soon as it becomes aware of the fact. Counsel to the Appellants/Respondents only knew of the demise of the 3rd Appellant only after the final judgment of this Court. See paragraph 10(a-d) of their counter-affidavit filed on 3rd February, 2017. Learned counsel submitted that Order 15 Rule 3 of the Rules of this Court is not applicable in this case where final judgment has long been delivered.
The 3rd issue is whether the change of name and/or metamorphosis of the 1st Respondent from African Continental bank Limited to Spring Bank Limited affected its status as a legal personality in this action. He answered in the negative “No”. Learned counsel conceded the fact that the legal personality in African Continental Bank Limited (ACB LTD) no longer exists in the name of A.C.B. Ltd. Nevertheless the rights, contractual obligations and in short, its entire assets and liabilities were merged into
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its new form and nomenclature called “Spring Bank Limited”. Therefore just like natural persons cannot disengage his/her self from contractual obligations just by simply changing name or getting “married” to another person, so also artificial person like A.C.B Ltd that got merged (married) with some other banks to form Spring Bank Limited, cannot discharge or be discharged from her former assets and liabilities.
Finally on this issue learned counsel submitted that the failure and/or omission of the parties including the 1st Respondent to inform the Court of the merger and consequent change of her name cannot affect the validity of the judgment of this Court delivered on 15th December, 2015. That the name African Continental Bank Limited, simply and technically went out of existence, but its assets and liabilities survive because it was not wound up as an existing concern. Therefore, from all legal perspective all the assets and liabilities right and obligations, are assumed by Spring Bank Limited by operation of law and extant regulations of the Central Bank of Nigeria and Nigeria Deposit Insurance Company (NDIC).
It was the submission of learned counsel
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that legal proceedings that were pending at the time of the merger, may proceed without formal substitution with the new name of Spring Bank Nigeria Limited. That this non substitution cannot void the proceeding and final judgment of the Court delivered on 15th December. He urged the Court to so hold.
The gravamen of complaint in this appeal is the judgment delivered by this Court on the 15-12-2016, whilst the 3rd Appellant had died in 2011. I have gone through the application before this Court, the affidavit of the parties as well as their written addresses and against this application.
First and foremost this Court is set up by the Constitution of the Federal Republic of Nigeria Section 6(1) and the Court of Appeal Act, 2010 (as amended). The Court of Appeal Act provides in Section 15 as follows:
“15 The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final
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judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or account to be made or taken, and generally SHALL have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purpose of rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction order the case to be reheard by a Court of competent jurisdiction.”
In the case ofMohammed v Husseini (1998) 12 SCNJ P. 163 – 164 (1995) LPELR 1896 (SC) gave the interpretation of Order 1 Rule 22 of the Court of Appeal Rules, 1981.
Order 1 Rule 22 of the Court of Appeal provides as follows:
“After an appeal has been entered and until it has been finally disposed of the Court shall be seized of the whole of the proceedings as between the parties thereto, and
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except as may be otherwise provided in those Rules, every application therein shall be made to the Court below, but any application may be made to the Court below, but any application may be filed in the Court below for transmission to the Court.”
What it means therefore is that it is settled law that until the appeal is entered in the Court below, that Court has no control over the proceedings as between the parties. It is settled law that a judgment of a trial Court is normally given after a due satisfaction of the applicable rules, and cannot be validly set aside only on appeal. See First Bank of Nigeria Ltd v I.N. Khaladu & Anor. (1993) 9 NWLR (Pt. 315) 44 at 57 and Shahimi v Akinola (1993) 5 NWLR (Pt.294) 43 at 447 per Onu JSC.
Power of Court:
The principle is that unless and until the Court pronounced a judgment on merit or by consent it retains the power to set aside its own default judgment. The power to do so is discretionary which has to be exercised judiciously, guided by the following principles pronounced by this Court in Williams & Ors v Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145:
(1) The reasons for the
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applicant’s failure to appear at the hearing or trial of the case in which judgment was given in his absence.
(2) Whether there has been undue delay in making application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists;
(3) Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a course inequitable;
(4) Whether the applicant’s case is manifestly unsupportable; and
(5) Whether the applicant’s conduct throughout the proceedings, that is from the service of the writ upon him to the date of judgment, has been such as to make his application worthy of a sympathetic consideration. See also Idam Ugwu & Ors v Nwaji Aba & Ors (1961) 1 All NLR 438; Adebayo Doherty v Ade Doherty (1964) NMLR 144 at 145; Momah v Gulf Insurance Corporation (1975) 1 NNLR 184 at 186; Khawani v Elias (1960) SC NLR 516; Evans v Bartlam (1937) 2 All ER 646 at 650 per Wali JSC.
In the same case Mohammed v Husseini (supra) Mohammed JSC stated:
“The Latin expression functus officio simply means task
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Performed.”
Therefore applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words once a Judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter. See Emeka Onyemobi v The Hon. President of Onitsha Customay Court & Ors. (1995) 3 NWLR (pt. 381) 50. However, it is important to observe that a judge is funtus officio if he gives judgment on the merits. A judgment in default is not a judgment “on the merits.” See Oppenheini V Haneef (1922) 1 A.C. 482 and UTC (Nig) Ltd v Pamotei (1989) 2 NWLR [103) 244: (1989) MSCC (pt. l) at 558 559.
Now turning to this application, I agree with the learned counsel for the 1st Respondent that this Court cannot set aside its own final judgment under any Rules or Laws under the Federation of Nigeria.
The inherent powers of this Court cannot be exercised outside its general powers as laid down in Section 15 of the Court of Appeal Act, 2010 (as amended). From judicial authorities, it is clear that Section 15 of the Court of Appeal Act, 2010 (as amended) limits
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the extant jurisdiction of this Court NOT TO DO any act after its final judgment in any case.
Section 15 of the Court of Appeal Act, 2010 states:
“The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal………….which the Court of Appeal thinks fit to determine before final judgment in the appeal……”
Clearly undoubtedly from the above Section 15 of the Court of Appeal Act 2010, this Court cannot after final judgment make any order or orders in respect of any matter where final judgment has been delivered.
The 1st Respondent’s contention that this motion is still born, is the correct position of the law. This motion to set aside and/or review the final judgment of this cannot be granted. From the Supreme Court decision inMohammed v Husseini this Court having delivered final judgment in the appeal on the 15th December 2015, is functus officio. It is settled law that once there is a determination on an issue, the trial Court is no longer competent to revisit such matter except there is a statutory provision allowing it to do so. See the cases of A.A. Ahmed &
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Co Ltd v A.I.B. Ltd (2001) F.W.L.R. (pt. 39) 1556 at 1569; Mohammed v Husseini(1998) 12 SCNJ 163 – 164.
Since this Court cannot further adjudicate on this matter, this application having been argued, this Court has elucidated the law. This application cannot be granted, it is consequently dismissed.
I assess costs of N100,000.00 in favour of the 1st Respondent.
AHMAD OLAREWAJU BELGORE, J.C.A.: I agree
PAUL OBI ELECHI, J.C.A.: I agree
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Appearances:
Miss Faith Igbinedion Esq.For Appellant(s)
Akuzamus M.G. Anakwe Esq. for 1st Responden,P. A. Akubo SAN,with him, Leo M. Ebi Esq., S.Y. Tsok Esq., A.J. Adudu Esq. for 2nd RespondentFor Respondent(s)
Appearances
Miss Faith Igbinedion Esq.For Appellant
AND
Akuzamus M.G. Anakwe Esq. for 1st Responden,P. A. Akubo SAN,with him, Leo M. Ebi Esq., S.Y. Tsok Esq., A.J. Adudu Esq. for 2nd RespondentFor Respondent
