Prince Chijioke B. Nnaji V. Prince Goddy Agbo & Anor (2005)

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GALADIMA, J.C.A.

This is a motion brought pursuant to section 16 of the Court of Appeal Act, Order 3 rule 3(1) of the Court of Appeal Rules, 2002 and under the inherent jurisdiction of this court on behalf of the 1st respondent/applicant, for an order setting aside the judgment of this court dated February 16, 2004 delivered by Opene, Akaahs and Adeniji, J.C.A., and an order re-listing for hearing appeal No. CA/E/EPT/12/03) Prince Chijioke Nnaji v. Prince Goddy Agbo and Ors. and appeal No. CA/E/EPT/12A/03, there being no valid judgment.

The grounds of the application are as follows:

1. The Court of Appeal is without jurisdiction to reopen and decide an appeal already decided on October 27, 2003 in the ruling of Honourable Justice M. Mohammed, J.C.A. and also reaffirmed in the ruling of Bon. Justice Ogunbiyi, J.C.A on January 27, 2004.
2. The Court of Appeal is functus officio as it relates to the appeal by Independent National Electoral Commission and 455 Ors. and lacked the jurisdiction to reopen, review, revisit the appeal for any purpose whatsoever and/or deliver the judgment dated February 2, 2004.

The judgment of the Court of Appeal dated February 26, 2004 is a nullity being a judgment made without jurisdiction.

Applicant also gave further notice that at the hearing of the application, he would rely on the records of appeal in appeal No. CA/E/EPT/12/03; appeal No. CA/E/EPT/12B/03 and CA/E/EPT/12A/03.

In support of the application is 11 paragraph affidavit deposed to by Ebele, a legal practitioner in the firm of the applicant’s counsel.

Annexed thereto are exhibits CN1 – CN6. Exhibit CN6 is the said judgment sought to be nullified. The three grounds on which the application is predicated are set out as follows:

1. That the Court of Appeal is without jurisdiction to reopen and decide on appeal already decided on October 27, 2003 in the ruling of Honourable Justice Mohammed, JCA and also reaffirmed in the ruling of Honourable Justice Ogunbiyi, JCA January 27, 2004.
2. That the Court of Appeal is functus officio as it relates to the appeal by Independent National Electoral Commission and 455 Ors., and lacked the jurisdiction to reopen, review, revisit the appeal for any purpose whatsoever and/or deliver the judgment dated February 26, 2004.
3. That the judgment of the Court of Appeal dated February 26, 2004 is a nullity being a judgment made without jurisdiction.

Following the order of this court, respective counsel filed and exchanged written addresses. Applicant filed his on 4/10/2004 whereas the appellant did not file any counter-affidavit but respondent in opposition to the application filed his written address on 5/10/2004. So also did the 2nd – 445th respondent, in opposing the application without filing counter-affidavit but filed their written address on 8/10/2004.

On 4/11/2004, we took arguments of counsel who adopted their respective addresses without detailed elaboration. Learned Counsel for the applicant Mike Okoye, Esq. referred to the applicant’s motion filed on 5/4/2004. He urged us to allow the application relying on the three grounds already reproduced above and a number of decided authorities of the Supreme Court and this court. He urged this court to set aside the judgment of Honourable Justices Opene, Akaahs and Adeniji, JJ.C.A., delivered on 26/2/2004 and to make an order re-listing for hearing of appeal No. CA/E/EPT/12/03: Prince Chijioke Nnaji v. Prince Goddy Agbo & Ors., and appeal No. CA/E/EPT/12A/03 – Prince Goddy Agbo v. Chijioke & Ors., there being no valid judgment.

The appellant/respondent in opposition relying on the Supreme Court decision in Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 435; Olojimfemi v. Osho (2000) 2 NWLR (Pt. 643) P. 143 and the decision of this court in Ukachukwu v. Uba (2004) 10 NWLR (Pt.881) P. 294 at 308-309. It is urged that this application be dismissed because the applicant has failed to show that his application comes within the exceptional circumstances contemplated in Igwe v. Kalu (supra) and Ukachukwu. v. Uba (supra).

On their part the 2nd – 245th respondents submitted that there was not such fundamental defect in the judgment of this court delivered on 26/2/2004 to warrant its being set aside. Their learned counsel Peter N. Eze, Esq. relying on the Supreme Court decisions in Igwe v. Kalu (supra) and Ukachukwu v. Uba (supra) and Ilonze v. Igboka – CA/E/EPT/9/2004 (Unreported) a decision of this court delivered on 30/9/2004, urged us to dismiss the application as a gross abuse of court process.

Briefly, facts relevant to this application as set out in the applicant’s affidavit and the documents attached as exhibits, in support of this application thereto are that on 21/7/2003, the National Assembly Election Tribunal sitting here in Enugu delivered judgment in petition No. NA/EPT/EN/2/2003: Nnaji v. Agbo & 445 Ors. Thereafter three separate appeals were filed against the said judgment as follows: CA/E/EPT/12/2003 filed by the applicant herein who was the petitioner before the Tribunal; CA/E/EPT/12A/2003 filed by the appellant herein who was the 1st respondent before the Tribunal; and CA/E/EPT/12B/2003 filed by the 2nd – 445th respondents herein who were the respondents before the Tribunal.

On 27/10/2003, on the application of the applicant here, the Court of Appeal (Coram: Mohammed, Fabiyi and Dongban-Mensem, J.J.C.A) dismissed appeal No. CA/E/EPT/12B/2003 on the ground that no brief had been filed by the appellants in that suit. Application of the 2nd – 445th respondent to set aside this order of dismissal was a final order and the court could not set it aside because the court was funetus officio.

However, On 9/2/2004 the two remaining appeals Nos. CA/E/EPT/12/2003 and CA/E/EPT/12A/2003, came up for hearing before a new panel consisting of Opene, Akaahs and Adeniji, J.J.C.A., and were consolidated. In the lead judgment delivered on 26/2/2004 Opene, JCA, dismissed appeal No. CA/E/EPT/12/2003 and allowed appeal Nos. CA/E/EPT/12A/2003 and CA/E/EPT/12B/2003.

In agreeing with the lead judgment, Akaahs and Adeniji, J.J.C.A also dismissed the main ‘appeal and allowed the cross-appeal. The decision nullifying the victory of 1st respondent/cross-appellant was set aside, while his election to represent Enugu North and South Federal seat in the House of Representatives was affirmed.

It must be made very clear that at all times that there were originally three separate appeals. Each appeal was an independent and separate complaint by the parties. One was dismissed. The other two were consolidated. Separate orders were made determining the fates of existing appeal.

I must also add that all the parties, that is the appellant/respondent; 1st respondent/applicant and 2nd – 445th respondents, appealed against the decision of the National Assembly/Governorship and Legislative House Election Tribunal sitting in Enugu on 21/7/03. The 1st respondent/applicant’s notice and grounds of appeal are contained on pages 296 -299 of the record while that of the appellant/respondent herein and 2nd – 445th respondents are contained on pages 300 – 309 and 310 – 318 respectively. The 1st respondent/applicant filed his brief of argument in his appeal No. CA/E/EPT/12/2003; respondent’s brief to the appellant/respondent’s appeal No. CA/E/EPT/12A/03 and another respondent’s to the brief of the 2nd – 445th respondents’ appeal No. CA/E/EPT/12B/2003. The appellant/respondent herein filed another respondent’s brief to the appellant’s brief in No. CA/E/EPT/12/03 but the 2nd – 445th respondents filed one brief encompassing their argument in their appeal No. CA/E/EPT/12B/03 and their respondents’ brief to the appellant’s brief of argument appeal No. CA/E/EPT/12/03 (See paragraphs 7, 8, 9 and 10 of the affidavit attached to exhibit CN2 in this application). It is the contention of the learned counsel for the appellant/respondent herein that on 27/10/2003, this court was misled by the learned counsel for the applicant herein into believing that no brief of argument was filed by the 2nd to 445th respondents. This would appear so to me as well. Otherwise how can the learned counsel who claimed that there was no brief filed by the appellant but filed a respondent’s brief to the appellant’s brief. (Again see exhibit ‘CN 1’ and paragraphs 10, 11, 12, 13, 14, 15 and 16 of the affidavit attached to Exhibit ‘CN2’ herein in this application). It will be recalled that the application of the 2nd – 445th respondents to set aside the order dismissing their appeal on the ground that the court was misled and no hearing notice was served on them was vehemently opposed. In his notice of objection, exhibit CN4, learned counsel for the applicant herein argued forcefully that this court is functus officio and has no jurisdiction to entertain the application. This objection carried the day.

The appellate jurisdiction of this court to entertain appeals from Election Tribunals is provided by section 246 of the 1999 Constitution. By subsection 3 thereof the decision of this court is final. It is settled law that once a court of law delivers a final judgment in a case on merit, it becomes functus officio in relation to the judgment it once pronounced. It is not open for the same court to sit on appeal on its judgment except with respect to minor ancillary matters that might have arisen. See Ogueze v. Ojiako (1962) 1 SCNLR 112; Ede v. Akampa Local Government (2000) 4 NWLR (Pt. 651) 70; Ilonze v. Igboka (supra); Senator Ugochukwu Uba v. Hon. C. N. Ukachukwu CA/E/EPT/19/2003 (Unreported decision of this Court delivered on 2/12/2004. In Igwe v. Kalu (supra) and Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) 547 at p. 586. The Supreme Court held that for the court to set aside its judgment it will require strong and exceptional circumstances to be established before it will set aside a judgment.

In the instant case, the learned counsel, the applicant has argued in their reply address that the judgment of this court dated 26/2/2004 is a nullity because it was made without jurisdiction. His contention is that because the lead judgment considered and allowed appeal No. CA/E/EPT/12B/2003, which had already been dismissed by another panel, the entire judgment of the Court of Appeal is a nullity. If the contention of the learned counsel is correct then it is the unanimous judgment of this court that dismissed appeal No. CA/E/EPT/12/2003 and that is the appeal of this applicant herein. But the court allowed the appeal No. CA/E/EPT/12B/2003, which must be an error because that appeal had been dismissed by this court. This error did not occur in the judgment of the other two Justices, Akaahs and Adeniji, J.J.C.A. They made it clear that they only dealt with the main appeal No. CA/E/EPT/12/2003 and cross-appeal filed by the 1st respondent/cross-appellant; that is appeal No. CA/E/EPT/12A/2003.

It is not every error in judgment that is sufficient to render it a nullity. For instance in Shuaibu v. N.A.B. Ltd. (1998) 5 NWLR (Pt. 551) 582, where a Justice of the Court of Appeal who did not sit on the panel that heard the appeal purported to read the judgment in the said appeal, the court held that the error was not one which occasioned a miscarriage of justice. In the case of Igwe v. Kalu (supra), the same court held that since ground 6 of the grounds of appeal contained in issue 5 of the issues formulated for determination was considered in one of the concurring opinion, it will be uncharitable to contend that there was denial of hearing. The cases of Okoye & 7 Ors. v. Nigerian Construction & Furniture Co. Ltd. & 4 Ors. (1991) 7 SCNJ 365; Okafor v. The Attorney-General, Anamma State & 4 Ors. (1991) 7 SCNJ p. 345 are not apposite to this application.

In Okafor’s case the Court of Appeal decided the substantive appeal earlier adjourned to 14/6/88 on 11/4/88, when it was considering the interlocutory appeal without hearing the appeal. The Supreme Court affirmed the decision upon application brought under Order 3 rule 27(11) of the Court of Appeal Rules, 1981 then in force. In the case of Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) p.203, which was a matrimonial proceeding, the Supreme Court held that, since the proceedings for a decree for dissolution of marriage was heard in Chambers contrary to the provisions of section 103(2) Matrimonial Causes Act and Order 1 rule 9(1) of the Matrimonial Causes Rules, the judgment amounted to a nullity and ought to have been set aside by the Court of Appeal.

These cases set out general principle that decision of the court which is a nullity may be set aside by the same court. These authorities discussed above are not helpful to the applicant in this application. Nowhere in the affidavit in support of the application and the exhibits attached or from the prolix arguments of his learned counsel, has the applicant shown why the orders made by the court dismissing Appeal No. CA/E/EPT/12/2003 and allowing appeal No.CA/E/EPT/12A/2003 is a nullity.

The present application is hinged on the validity of the orders dismissing appeal No. CA/E/EPT/12/2003 and allowing appeal No. CA/E/EPT/12A/2003 on the nullity of order made in appeal No. CA/E/EPT/12B/2003 since Akaahs and Adeniji, J.J.C.A. only dealt with appeal No. CA/E/EPT/12/2003 and CA/E/EPT/12A/2003, applicant should show what injustice he has suffered by the error in the judgment of Opene, JCA. In my respectful view there was no such a fundamental defect in the judgment of 26/2/2004 that would render the said judgment a nullity.

In the final result, I am of the view that there is no merit in this application. It is hereby dismissed with N10,000 costs against the applicant but in favour of each set of the respondents.

Other Citations: (2005)LCN/1675(CA)