Alhaji Taofeek Alao V. African Continental Bank Ltd (2000)
LAWGLOBAL HUB Lead Judgment Report
KARIBI-WHYTE, J.S.C.
This is a ruling on the application seeking an order to set aside ex debito justitiae the judgment of this court, delivered on the 27th February, 1998 dismissing his appeal against the judgment of the Court of Appeal dated 16th May, 1994. The order seeks a rehearing of the appeal on the basis of the material exhibited to the affidavit in support of the motion. The application was brought by way of notice of motion under the inherent jurisdiction of the court.
GROUNDS FOR THE APPLICATION
The grounds for the application are as follows:-
“a. That the applicant has been penalised and has suffered injustice because his case was not fairly presented to or considered by the Supreme Court of Nigeria.
b. The decision of the Supreme Court was based of (sic) on fundamental and false assumptions of law and fact which the court was not entitled to make.
c. The decision of the Supreme Court is clearly contrary to the intention of the Justices themselves,”
The history of the litigation which has led to this application and the worries of the applicant is copiously recited in the affidavit in support. Paragraphs 2, 3, 4, 5,6,7 and 8 give the background to the present application, and the clear absence of intention of the applicant/appellant to contravene the laws of the country, or to commit any acts of illegality. Paragraphs 14 and 16, are expressions of opinion about why this court decided the appeal against applicant, namely the failure of counsel to produce the relevant authorisation of the Minister of Finance for the payment of the drafts subject matter of this litigation. Paragraphs 17, 18 and 19 place the blame on the failure of counsel due to poor health to present the case of the appellant/applicant adequately, clearly and properly before the court. Paragraphs 20,21, 22,23, 24 and 26 are substantive arguments of the legal validity of the transactions which it was averred were not brought to the attention of the court during the hearing.
THE FACTS
Being an application to set aside the judgment of this court, it is only relevant to state so much of the facts of the case as is necessary for the determination of this application.
On the 27th February, 1998, this court heard the appeal of the appellant against the judgment of the court. In a unanimous judgment the court dismissed the appeal with N 10,000 costs to the respondents. The application before this court is to set aside this judgment and rehear the appeal on the grounds stated in the motion. Applicant is relying on the inherent jurisdiction of this court for the Order sought.
ARGUMENTS OF COUNSEL
Both learned counsel for the applicant and respondent filed briefs of argument in this application. Learned Counsel to the Central Bank who appeared for the Central Bank did not file any brief of argument and offered no argument.
Counsel adopted and relied on their briefs of argument in presenting their respective arguments before us.
In presenting his argument, Learned Counsel for the applicant Mr. Candide Johnson posed what he described as two difficult questions to the court. The first question was “On what principle and in what circumstances will the Supreme Court of Nigeria set aside its own final judgment. Second, whether fundamental defects in the adjudication and manifest injustice resulting in this case are sufficient ground for the Supreme Court to exercise the power”.
The submission is that the decision by this court of the 27th February, 1998 ought to be set aside ex debito justitiae and the appeal re-heard on the basis of critical evidence exhibited to the affidavit in support of this Notice of Motion.
Learned Counsel to the applicant has in his brief of argument criticized extensively the judgment of this court in various respects. In fact, learned counsel concluded that the order made by this court was inconclusive and of benefit to neither of the parties. Counsel conceded the finality of the judgments of this Court, but argued that notwithstanding this court has an inherent power to set aside its decision ex debito justitiae. It was submitted that the facts of this case come within the principles which can be enunciated from the various decisions.
Counsel referred to several decisions of this court and R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex. Parte, Pinochet Ugarte No.2 (1999) IWLR 272 and formulated the general principle that “where it is established that in the course of a Legitimate adjudication circumstances existed which falsify fundamentally the jurisdiction assumed, or the procedure adopted or the factual or Legal conclusion or decision reached the adjudication will be deprived of the character of a legitimate adjudication and will be liable to be set aside ex debito justitiae”.
Counsel concluded that “The court should do so where injustice would ensue and through no fault of his own, the party has suffered the injustice through fundamentally unfair procedure”.
The decision of this court referred to and relied upon were Obioha v. Ibero (1994) 1NWLR (Pt.322) 503, on the interpretation of Order 8 rule 16 R.SC 1985; Odofin v. Olabanji (1996) 3 NWLR (Pt.435) 126 where the court held it had inherent power to set aside its own decision where there was a fundamental defect in the proceedings, Chime v. Ude (1996) 7 NWLR (Pt.461) 379, where this court held it had power to set aside its own judgment shown to be invalid, null and void, in breach of the Constitution or given in error. But in this case the court dismissed the application and held there was no invalidity. In Olorunjemi & Ors v. Asho & Ors. SC 13/1993; (2000) 2 NWLR (Pt.643) 143, the complaint was that this court had over looked a vital element of the case. The court recognised its power to set aside its judgment ex debito justitiae, and on the 18th March, 1999, set aside its decision delivered on the 8th January, 1999.
Counsel referred to Ex parte Pinochet Ugarte, where the judgment of the House of Lords was set aside on the ground of the appearance of bias on the part of one of their Lordships.
It was also submitted that because of illness of counsel, the Supreme Court did not have the opportunity to fairly consider the case. The reason suggested was that existing matters which the court expressly desired to consider, but which were as a result overlooked would have had a decisive effect on applicant’s case.
Counsel referred to Section 6(6) (a) & (b) on the general judicial powers and Sections 213(1) & (6) &216 of the Constitution of Nigeria 1979 and submitted that these provisions do not derogate from the judicial powers. Counsel also cited Section 215 of the Constitution 1979 and submitted that none of these provisions is being contravened.
Learned Counsel referred 10 Order 8 rule 16 R.S.C. 1985 and Adigun & Ors. v. A-G. Oyo State (1987) 1NSCC 545; (1987) 2 NWLR (p1.56) 197; Ashiyanbi v. Adeniji (1967) I All NLR 82 where this court has declined the invitation to set aside its decision. It was submitted that in those cases there have been no injustice and there was no reason to exercise the power. Learned Counsel argued that the Supreme Court is a superior court of record with inherent powers outside the jurisdiction conferred to review itsownjudgment. Hereliedon wwrance v. Norreys (1890) 15 AC 210, Re Gray: Dressen’. Gray (1887) 36 Ch. D.205.
Learned Counsel distinguished the decisions of Oyeyipo & Anor. v. Oyinloye (1987) I NWLR (PI.50) 356, and Adigun v. A-G. Oyo State (1987) I NSCC 545;(1987) 2 NWLR (P1.56) 197 as cases decided on the grounds that no injustice had been done to the applicants.
Specifically referring to the instant case, learned counsel attacked the judgment of this court and submitted that the court intended to decide the case before it according to the effect of the Exchange Control Act. Counsel pointed out that the court failed to identified the Exchange Control (Delegation of Powers) Notice 1962 (L.N. No. 82 of 1962 Cap. 113 Laws of the Federation of Nigeria 1990) by which the Minister of Finance delegated certain powers under the Exchange Control Act 1962 to the Central Bank of Nigeria. The order approving the remittances is attached and marked Exhibit TA3. The fact that the Central Bank remitted the funds is not in dispute. It was also not in dispute that respondent to this application was named as an authorised dealer by LN. No.31 of 1968, the Exchange Control (Appointment of Authorised Dealers) Notice. Learned Counsel then submitted that because the attention of the court was not drawn to these provisions of the law, both applicant’s counsel and the court assumed that the transactions were illegal in violation of the Exchange Control Act 1962. It was submitted that without the relevant laws the Justices could not fairly decide the question of illegality, and could not consider whether the applicant had not committed any wrong and that he should have the money paid to him.
It was further submitted that the presumed illegality should not have rendered the action of the applicant unenforceable. Learned counsel then went on to consider the decisions of our courts that they will not enforce a contract based on illegality. Citing Sodipo v. Lemminkainen Oy (No.2) (1986) I NWLR (pt.15) 220, Thirwell v. Oyewumi (1990) 4 NWLR (Pt.144) 384.
Learned Counsel argued that the effect of illegality is that one or both parties will be precluded from suing on the transaction. Noting the complexity of the principle of illegality, it was submitted that it is not in every case that illegality renders the transaction or the action invalid. In the instant case Learned Counsel submitted that the question is whether the Exchange Control Act 1962 or the Exchange Control Anti-Sabotage Decree 1985, renders unenforceable, the obligation of the owners of the drafts to repay the applicant after he had settled their own liability in good faith.
Answering in the affirmative, it was submitted that the obligation could be performed without infringing the law. The loan contract which may have been contrary to Nigerian Law could be performed legally if authority was obtained. It was submitted relying on Bank fur Gemeimvirtschaft Aktiengesellchaft v. City of London Garages Ltd. (1971) I WLR 149 and Archbolds (Freighrage) Ltd. v. Spanglett Ltd. (1961) 1 QB 374 that since applicant was ignorant of Nigerian law and did not intend any illegality, to deprive him of his rights would merely injure
the innocent, benefit the guilty and put a premium on deceipt.
Learned Counsel submitted that if applicant had produced the permission which should have been sought and obtained under Section 3(1) of the Exchange Control Act, the decision of the court would have been different, since Counsel was allowed to do so even at the stage before the court. The inability to do so was attributed to the failing health of Counsel for the appellant/applicant. The applicant should not be made to suffer for the lapses of Counsel. The case of Shell P.D. C. v. Uzoaru (1994) 9 NWLR (Pt.366) 51 was cited and relied upon.
Learned Counsel submitted that the endorsement on the cheques does not deny its value as a cheque. No person is contesting the cheque.
Finally it was submitted that:-
(a) The order made is inconclusive and of benefit to no one.
(b) No order was made with respect to interest that has accrued on the fund.
(c) The order to the Central Bank to receive and retain a fund determined to be owned by a private individual, is now being locked up in perpetuity.
(d) It is contrary to public policy to lock up money in this manner.
It is quite obvious from the grounds of the application and the arguments in support that applicant is seeking a rehearing of the appeal already decided and judgment given on the grounds of substantive errors in the determination of the appeal arising from fundamental and false assumptions of law and facts on the part of the court, and the injustice suffered by the applicant because of the inability of his counsel to present his case properly and fairly before the court. Applicant also contended that the decision sought to be set aside was contrary to the intention of the justices themselves. The question is whether these are reasons why judgment ought to be set aside ex debito justitiae.
Learned Counsel to the respondent Chief B.LD. Ezeogu, in his brief of argument adopted the same line of argument and went on to point out how correct the Supreme Court was in its decision sought to be set aside. Referring to the pleadings of the parties, he submitted that the transaction was illegal and that applicant was not denying this and admitted the facts both in the pleadings and in the evidence of the applicant and his witnesses. Learned counsel submitted that the grounds on which the application was brought clearly stated that the Supreme Court was being asked to sit on appeal over its own decision. Citing and relying on the dictum in Thynne v. Thynne (1955) 3 All ER 129; Minister of Lagos Affairs, Mines & Power v. Chief O.B. Akin-Olugbade (1974) II SC II; Osoba v. The Queen FSC 141/1961,and Adigun v.A.G. of Oyo State (1987) I NSCC 545; (1987) 2 NWLR (Pt.56) 197 in addition to Sections 6(6)(9) (sic) of 1979 and now6(1)( 4)(sic} of the 1999 Constitution, it was submitted that the court cannot reopen the matter, and cannot substitute a different decision from the one recorded. Learned Counsel submitted that this court cannot in this case set aside its own decision.
The contention of the applicant may be summed up from his formulation that the decision of this court delivered all the 27th February, 1998 should be set aside ex debito justitiae on the grounds relied upon in the motion. In accordance with this formulation, this court should have the inherent power to set aside its judgment “where it is established that in the course of a legitimate adjudication circumstances existed which falsify fundamentally the jurisdiction assumed or the procedure adopted or the factual or legal conclusion or decision reached, the adjudication will be deprived of the character of a legitimate adjudication and will be liable to be set aside ex debito justitiae. In other words this court should have an inherent power to set aside its decisions reached in those circumstances where adjudication was exercised in the absence of jurisdiction or where the procedure adopted is such as to deprive the decision of the character of a legitimate adjudication.
Very concisely stated, a remedy ex debito Justitiae is that which the applicant gets as of right in accordance with the requirements of justice.
I have already referred to the relief sought by the applicant to this motion. There is no doubt that the aim of the relief sought is for this court to set aside its judgment delivered on the 27th February, 1998. Applicant has argued that despite the constitutional prohibitions and the applicable rules of court, this court can exercise its inherent power to set aside its judgment in this appeal. The onus is on the applicant to show that grounds exist in the interest of justice which make it imperative the setting aside of the judgment complained of. It is important to what shall be stated hereafter to refer to the applicable constitutional provisions and rules of the Supreme Court.
Section 215 of the Constitution of the Federal 1979 (now Section235 of 1999 Constitution) provides-
“Without prejudice to the powers of the President or of the Governor of a State with respect to the prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court.”
It is relevant to refer also to the provisions of Section 213(6) of the 1979 Constitution (now Section 233(6) of the 1999 Constitution) which states:-
“Any right of appeal to the Supreme Court from the decision of the (Federal) Court of Appeal conferred by this section shall, subject to section 216 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”
Pursuant to section 216 of the 1979 Constitution, the Chief Justice of Nigeria has made rules regulating the powers, practice and procedure of the Supreme Court. Order 8 r.16 of the Rules of the Supreme Court 1985 (as amended) has provided for the limited circumstances in which the court can review its own judgment. It provides as follows:-
“16. The Court shall not review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted.”
The following three principles appear to be enshrined in the provision of this Rule. First, the court shall not review any judgment once delivered. See Adefulu v. Okulaja (1900) 5 NWLR (Pt.550) 435. The exception to this prohibition where it is intended to correct any clerical mistakes or some error arising from accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. This is known as the “slip rule”. Secondly, there is a total prohibition from review of a judgment which correctly represents what the court decided. Such a judgment shall not be varied. Thirdly, the operative and substantive part of a judgment shall not be varied and a different form substituted.
A construction of this rule demonstrates unequivocally a clear prohibition on the interference subsequently with the operative and substantive part of a judgment. See Pearlman (veneers) S.A. (Pry.) Ltd. v. Barrels (1954) 3 All ER659. Similarly, a judgment which correctly represents the decision of the court cannot be varied. The only aspect of a judgment which can be interfered with subsequent to delivery is that which enables correction of clerical mistakes or some errors arising from accidental slips or omission, or to vary the judgment or order to give effect to its intention- See Anyasinti Umunna & Ors v. Okwuraiwe (1978) I LRN 253; (1978) 6 & 7 SC 1.
I consider it appropriate to answer the criticisms of the applicant that the decision of this court should be set aside ex debito Justitiae. It is interesting to observe that the reasons relied upon by the applicant do not fall within any of the grounds stated in the application or the principles of ex debito justitiae enunciated by learned counsel. I have already pointed out in this judgment that applicant’s , view is that there should be an inherent power to set aside a judgment given in the absence of jurisdiction or where the procedure adopted is such as to deprive the decision of the character of a legitimate adjudication.
Without doubt the proposition is unarguably correct and falls squarely within the principles enunciated in Madukolu & Ors. Nkedilim & Ors. (1962) I All NLR (ptA) 587; (1962) 2 SCNLR 341. A court is competent when:
(I) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) The case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
These principles are well settled and accepted. None of the issues stated above has been raised in the application before us. Applicant is not challenging the jurisdiction of the court. If that was his position he would have relied on the general rule that any court of record has an inherent power to set aside its judgment or order which is a nullity – See Skell consult (Nig.) Ltd. v. Secondy-Ukey (1981) I SC 6. He has also not alleged any procedural irregularity sufficient to vitiate the judgment. His case is founded on supposed injustices to applicant because his counsel was unable to present his case properly to the court on account of his ill-health. It is difficult to appreciate how this reason falls within the principle enunciated which aims at vitiating a decision on grounds of want of jurisdiction or of procedural irregularity. There is no judicial decision known to me where the complaint by applicant of the fact that counsel was unable to present his case properly was regarded as sufficient ground to set aside the decision.
The judgment of this court sought to be set aside, held that:-
(a) The applicant acted illegally and contravened the Exchange Control Act because permission of the Minister of Finance was not obtained for the transfer of funds.
(b) The contract by which the advances were made was illegal or for an illegal purpose.
(c) The transfer of the cheque was impossible because of their restrictive endorsement
(d) If the applicant could produce the permission of the Minister, the decision might be different.
It is important and pertinent to state that this court has the inherent power and jurisdiction to set aside its decision in appropriate case. This it can do when the judgment has been obtained by fraud practised on the court by one of the parties – See S.O. Alaka v. Adekunle (1959) LLR. 76; Flower v. Lloyd (1877) 6 Ch.D.297, Olufumise v. Falana (1990)3 NWLR (Pt.136)1. This court will set aside its decision which is a nullity – See Okoli Ojiako & Ors. v. Onwuma Ogueze & Ors. (1962) I All NLR 58; (1962) I SCNLR 112; Salisun ldris Saliyun v. Alhaji Dan Mashi (1975) I NMLR 55 at p.58, Ogbu v. Urum (1981)4SC 1; Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125)188; Robert Okafor & Ors. v. A.-G., Anambra State & Ors. (1991) 6 NWLR (Pt.200) 659, 680. This court can set aside its judgment where it is obvious that the court was misled into giving the judgment under a mistaken belief that the parties consented to it- See Ganiyu Agunbiade v. Okunoga & Co. (1961) 1 All NLR 110, Obimonure v. Erinosho & Anor. (1966) 1 All NLR , 250. The case of the applicant before us does not fall into any of the above cited decisions.
The exercise of the jurisdiction of the Supreme Court is statutory and its powers are circumscribed by the provisions of the Constitution and rules of practice made thereunder. See Again Adigun v. A. G. of Oyo State (1987) 2 NWLR (Pt.56) 197. By Section 215 of the Constitution, 1979, (now Section 235 of the Constitution, 1999) the decision of the court is final. However, Rules of Court have been made under Section 216 of the 1979 Constitution enabling the Supreme Court to review or vary its judgment in certain circumstances. The Supreme Court has no power to review its judgment once delivered – See Ashiyanbi & Ors Adeniji (1967) 1 All NLR 82, Minister of Lagos Affairs, Mines & Power & Anor. v. Akin Olugbade & Ors. (1974) I All NLR (Pt.2) 226, Iro Ogbu & Ors. v. Ogburu Urum & Ors (1981) 4SC 1. After dismissing an appeal under Order 8 r. 8 it has no power to entertain an application to re-enter the appeal- See Chukwuka & Ors. v. Ezulike (1986) 5 NWLR (Pt.45) 892 – I have already reproduced in this judgment the provisions of Order 8 r.16, Rules of the Supreme Court, 1985 (as amended) which enable this court to review its decisions in certain circumstances. This rule is inpari materia with the provisions of Order 7 r. 29 Federal Supreme Court Rules. In Ashiyanbi v. Adeniji (1967) I All NLR 82, where Order 7 r. 29 Rules of the Supreme Court 1960 was considered, this court clearly stated that it possesses the power subject to appropriate safeguards where the justice of the case so requires, to correct or amend the terms of its own orders of judgments to effect such variations therein to carry out the meaning intended by the judgment.
In Minister of Lagos Affairs, Mines and Power & Anor. v. Akin-Olugbade & Ors. (1979) 1 All NLR (Pt.2 226, this court construed the provisions of Order Rule 29 to mean that the rule only envisages an application for the invocation of the “slip rule” as stated in Ashiyanbi v. Adeniji (supra), and that it does not enable an application to be brought for the review of any fact or law in a previous judgment of the court. This court pointed out that to allow the review of any fact or law in a previous judgment would tantamount to treating the application as an appeal and inconsistent with the provisions of Section 120 of the Constitution 1963.
The provisions of Order 8 Rule 16 was construed in Oyeyipo v. Oyinloye (1987) I NWLR (Pt.50) 356 and held to be in pari materia with Order 9 Rule 7, Rules of the Supreme Court 1977, which was considered in Ogbu v. Urum (1981) 4 SC I. As in that rule, the expression “shall” in this rule was held to be mandatory. Accordingly, the effect of the rule is that generally this court having come to a decision and embodying such decision in a judgment or order, it becomes functus offico, and cannot reopen the matter and substitute a different decision to the one already recorded.
In the recent decision of this Court in Chime v. Ude (1996)7 NWLR (pt.46 I) 379 a full court, after a split decision of 6;I revisited and followed the earlier judgment of Oyeyipo v. Oyinloye (1987) 1NWLR (Pt.50) 356. It was held that the Supreme Court had no jurisdiction to review its judgment or orders except as provided in Order 8 Rule 16 of the Supreme Court Rules 1985 (as amended).
Although under Order 8 Rule 16, the court is entitled to correct a misnomer or misdescription under the “Slip-Rule”. It cannot under that Rule whether in the exercise of its inherent jurisdiction or by the powers conferred by the Rule of Court vary a judgment or order which correctly represents what the court decided, nor will it vary the operative and substantive part of its judgment. – See Oyeyipo v. Oyinloye (1987) 1NWLR (Pt.50) 356, MacCarthy v. Agard (1933) 2 K.B. 417.
The court’s inherent jurisdiction to amend an order already drawn up is limited to cases where an order as drawn up does not correctly state what the court actually decided and intended by its judgment – Preston Banking Co. v. William Allsup & Sons (1995) 1 Ch.D.143.
Learned Counsel had stated that the decision of the court was clearly contrary to the intention of the justices. There is however, nothing in the judgment to show that the judgment as drawn up was different from what was decided. Learned Counsel to the applicant based his conclusion on what he regarded as the bias of the court and the prejudice of assumed illegality. These are by no means the requirements under Order 8 Rule 16, or grounds enabling setting aside the judgment ex debito justitiae. Learned Counsel to the applicant would appear to have misunderstood and misconceived the scope and amplitude of the exercise of the inherent jurisdiction of the court to set aside its own decision ex debito justitiae. It is well settled that the judgment of this court validly constituted as to the number of its justices and jurisdiction of the subject matter is final. There is no right of appeal to any person or authority except as provided under Section 215 (now Section 235) of the Constitution 1979. The provisions for the correction of accidental mistakes or varying the order to bring it in line with the intention of the judgment has not made any provision for setting aside the judgment or for a rehearing of the appeal.
This court cannot exercise the jurisdiction sought by the applicant in this Motion. The application is accordingly dismissed.
Applicant shall pay N 1,000.00 as costs to the respondent.
SC.14/1995(2)
