Chief Kalu Igwe & Ors V. Chief Okuwa Kalu & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

E.O. OGWUEGBU, JSC.

On the 15th of February, 2002, this Court delivered judgment in the above appeal. The plaintiff/appellant’s appeal was dismissed by the majority judgment. On the 20th February, 2002, the appellants brought a motion on notice for the following orders:

(1) An order setting aside the judgment of this Honourable Court contained in the lead judgment of Uthman Mohammed, JSC., delivered on the 15th of February, 2002.

(2) An order directing the appeal to be argued de novo before a new Panel of the Court.

The grounds on which the application is based are as follows:

1. There was a denial of fair hearing when the Court struck out grounds 5 and 6 raised in the Notice of Appeal filed on 9th September, 1999 and argued as Issue 5 in the Appellant’s Brief, which issue touched on the title to the land in dispute on the ground that no leave of Court was obtained to argue those grounds when in fact leave was applied for and granted.
2. The learned Justice of the Supreme Court who read the lead judgment did not and could not have read the Appellant’s Reply Brief dated 19th November, 2001, when he stated in his Judgment:

(a) that there was no reaction by the Appellant to the Respondent’s allegation that no leave of court was obtained when in fact this issue was addressed on page 4 paragraph 1 of the Reply Brief, and

(b) When the learned Justice in dealing with Issue No. 2 stated at page 8 paragraph 2 as follows:

Learned Counsel for the Appellants made heavy weather of these amendments but failed to point out how the amendments affected their case before the Court or how it would entail injustice or surprise or embarrassment to them. To say that the Appellant’s were overreached by the amendments simpliciter without describing how the amendments affected their case before the Court is a hollow submission.’

When in fact at pages 1, 2 ad 3 of the Reply Brief the Appellant catalogued the miscarriage of justice occasioned by the grant of the application to amend the pleadings and the documentary evidence to wit: the plans before the Court.

There is an affidavit of seventeen paragraphs in support of the application with exhibits annexed to it. The relevant paragraphs read as follows:

7. That the appeal was argued on the 19th of November, 2001, on which day the Appellant filed its Reply to the Respondent’s Brief with copies of same duly made available to the Court.
8. That in the lead judgment of Mohammed, JSC., the learned Justice who read the lead Judgment struck out grounds 5 and 6 of the Appellant’s grounds of appeal which grounds formed the subject matter of Issue 5 raised in the Appellant’s Brief.
9. That the two grounds struck out raised the issue of title to the land in dispute and the non-consideration and determination of these grounds of appeal was prejudicial to the case of the Applicant.
10. That the reasons given in the lead judgment for striking out those grounds of appeal was that the Appellant did not in its Reply Brief dispute the contention of the Respondent’s Counsel that those grounds of appeal are incompetent as no leave of Court was obtained to argue those grounds.

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12. That in resolving Issue No. 2 against the Appellant, the Honourable Justice Mohammed, JSC., at page 8 of the lead Judgment also stated as follows:

Learned Counsel for the Appellant made heavy weather of these amendments but failed to point out how the amendments affected their case before the court or how it would entail injustice or surprise or embarrassment to them. To say that the Appellants were overreached by the amendments simpliciter without describing how the amendment affect their case before the Court is a hollow submission.’

13. That it is of course incorrect that the prejudice created by the granting of the amendment was not stated by the Appellant as all these were set out on pages 1, 2 and 3 of the Reply to the Respondent’s Brief.
14. That I am informed by Miss. O. M. Lewis and I verily believe that the statements attributed to the Honourable Justice of the Supreme Court who read the lead Judgment could not have occurred if cognizance had been taken of the Reply to the Respondent’s Brief filed by the Appellant before the Court.
15. That the error on the part of the Honourable Justice who read the lead judgment has resulted in a miscarriage of justice, as Judgment would have been given in favour of the appellant or at worst the case would have been sent back for retrial.

The defendants/respondents thereafter filed a motion in opposition praying the Court for the following orders:

An order striking out the appellant’s motion dated 15/2/2002 (sic) to set aside the judgment of this Honourable Court dated 15/2/2000 (sic) and for the trial of this suit de novo at the Umuahia High Court, Abia State;

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AND TAKE NOTICE that the grounds on which this application is based are as follows:

(i) The Appellants’s said motion violates Order 8, Rules 16 of the Supreme Court Rules and is by reason thereof incompetent.

(ii) The motion is an appeal by the back door against decisions of this Honourable Court which are correctly embodied in its judgment.

The application is supported by an affidavit of eight paragraphs with exhibits annexed to the said affidavit. In addition, the defendant/respondent filed a counter-affidavit of nineteen paragraphs in opposition to the plaintiffs’ motion to set aside the judgment. The relevant paragraphs are reproduced hereunder:

4. That paragraph 11 of the affidavit is incorrect as Exhibit A’ on which the appellants rely for this application, was in respect of the five grounds of appeal filed by the appellants on March, 13, 1996, which 5 grounds of appeal formed part of the appellant’s Motion on Notice also filed on March, 13, 1996, and granted on July 9, 1996.
5. That the Motion on Notice referred to in paragraph 4 above which is annexed hereto as Exhibit 1′ was supplanted by a subsequent Motion on Notice filed on September 9, 1999 granted on March 11, 2000, and containing a second Amended Notice of Appeal.
6. That in paragraph 12 of the affidavit in support of the application for a 2nd Amended Notice of Appeal in the Motion on Notice granted on March, 11, 2000, the appellants had deposed as follows:-

That the Notice of Appeal, particularly grounds 2, 4, 5 and 6 has to be amended after relating the amendments made on the plans on the day judgment was to be delivered with the pleadings and evidence.’

9. That in view of paragraph 7 above the original Amended Notice of Appeal filed by the appellants on March 6, 1996, granted on July, 9, 1996, and referred to in Exhibit A’ in the appellant’s affidavit was abandoned together with the five grounds of appeal contained in it and the leave to file grounds of appeal not based on law only.
10. That the appellants failed to disclose in their affidavit the fact that their 1st Amended Notice of Appeal which was allowed in Exhibit A’ of their affidavit contained only five grounds of Appeal unlike the 2nd Amended Notice of Appeal which contained 6 grounds of appeal on which this appeal was argued.
11. That the motion seeking leave to file the 2nd Amended Notice of Appeal and granted on March 11, 2000, did not contain any prayer for leave to file any ground of appeal which was not based on law or which was an attack on the concurrent findings of the lower courts. The said motion and the order allowing it are hereto attached as Exhibit 2′.

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13. That paragraphs 9 and 10 of the affidavit are not correct in that grounds 5 and 6 were based on facts or on concurrent findings of facts of the two lower courts and no leave to file these two grounds were sought or obtained in the Appellants’s motion to file an amended Notice of Appeal containing a prayer for leave to argue grounds other than those of law allowed on 9/3/2000 and on which this appeal was fought.
14. That the appellants did not exhibit in their affidavit the prayers contained in their 2nd motion allowed on 9/3/2000 on which the appeal was argued and which did not seek leave to argue grounds not based on law only.

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16. That the submissions in the Amended Brief filed on 15/2/2000 and alleging miscarriage of justice, ignored the fact that the two lower courts had already found that there was no miscarriage of justice, while on p. 8 of the lead judgment the allegation of a miscarriage of justice had been exhaustively dealt with and dismissed.

In moving the motion, Professor Kasunmu, SAN, stated that the application is brought out under the inherent jurisdiction of the court and that the grounds upon which the application is based are set out in the schedule to the application. These grounds have been set out earlier in this ruling. He also relied on the affidavit in support of the application together with the documents annexed to the affidavit.

There is a preliminary issue raised by the learned counsel for the respondents to the effect that the leave granted to the applicants by this Court to further amend their notice of appeal and to deem it as properly filed and served contained a sixth ground of appeal which was of mixed law and fact. That the appellants did not obtain leave of this Court to appeal on that 6th ground.

Before the application to further amend the notice of appeal granted on 11-3-2000, the appellants had on 9-7-96 obtained leave of this Court to appeal on grounds other than of law and also on concurrent findings of the two lower courts.

The sixth ground of appeal was argued with ground five as Issue (5) in the appellant’s brief of argument. Professor Kasumnu, SAN, replied to the objection in the appellant’s Reply brief. This was the Reply brief which he contends in this application that the court did not advert to in its judgment which led to the striking out and non-consideration of the said Issue (5). Learned counsel for the respondents has raised the same objection to the said ground (6) in their opposition to this application.

In the first application brought by the appellants/applicants granted by this Court on 9-7-96, leave to appeal on grounds other than law was sought. When, therefore, the appellants brought another application to further amend their notice of appeal which was granted on 11-3-2000 and which application contained the sixth ground of appeal on mixed law and facts, they did not need any leave. They needed only leave to amend their notice of appeal since the leave to appeal on grounds other than law granted on 9-7-96 covered not only the grounds of appeal then filed but also, the additional 6th ground. The leave granted on 9-7-96 relates to the entire appeal. See Awote & Ors. v. Owodunni & Ors. (1986) 5 NWLR (Pt. 46) 941. In the instance, the 6th ground of appeal which was argued as issue (5) in the appellants’ brief in the appeal was competent.

Having cleared the way, I will continue with the consideration of the application for an order to set aside the judgment of this Court delivered on 15-2-2002.

Professor Kasunmu, SAN, contended that the appellants were denied fair hearing when the Court struck out grounds 5 and 6 raised in their Notice of Appeal and argued as Issue (5) in the Appellant’s brief which issue touched on title to the land in dispute. He referred the Court to the portion of the judgement of my learned brother, Mohammed, JSC., on the issue which reads:

Learned counsel for the appellants made heavy weather of these amendments but failed to point out how the amendments affected their case before the Court or how it would entail injustice or surprise or embarrassment to them. To say that the Appellants were over reached by the amendments simpliciter without describing how the amendments affect their case before the Court is a hollow submission.

Professor Kasunmu, SAN, further submitted that the reason given by the court for striking out the two grounds was that leave was not obtained before they were filed and if the court had read the Reply brief, it would have discovered that leave was indeed sought and obtained and the remarks made by the Court as to the incompetence of the two grounds of appeal would not have been made.

He concluded that the germane issue in the appeal which is title to the land in dispute was not considered and in his view, it was a fundamental error. We were urged to set aside the judgment and order that the appeal be heard de novo by another panel.

Learned Senior Advocate of Nigeria referred the Court to the cases of Alao v. A.C.B. Ltd. (2000) 6 S.C. (Pt. 1) 27, (2000) 9 NWLR (Part. 672) 264, 271-273; 280-281 and 296, Ex parte, Pinochet Ugarte No. 2 (1999) 1 WLRL 272 and Olorunfemi & Ors. v. Asho (1999) 1 S.C. 55, (1999) 1 NWLR (Pt. 585) 1. In Asho’s case (supra), this Court failed to consider the respondent’s cross-appeal. A motion to set aside the said judgment was brought. The Court granted the application and ordered that the appeal be re-heard by a panel different from that which heard it. I will say more on this later in the Ruling. Pinochet’s case had to do with bias which is not the case in the application before the Court.

Chief K.K. Ogba, learned counsel for the respondents submitted that the application to set aside the judgment is contrary to Section 235 of the Constitution of the Federal Republic of Nigeria, 1999, and the provisions of Order 8, rule 16 of the Supreme Court Rules, 1999, as amended. It was his further contention that the applicants did not seek the leave of court to appeal on the sixth ground of appeal when they applied for leave to further amend the Notice of Appeal.

I have expressed my view on this point in this Ruling and I will not make further comments on it. The said ground of appeal was competent. Chief Ogba referred the Court to the case of Alao v. A.C.B. Ltd. (supra and submitted that Alao’s case provided the only conditions upon which this Court can set aside its judgment.

The learned respondent’s counsel referred the Court to Section 235 of the Constitution which makes provision for the finality of any determination of the Supreme Court and Order 8, rule 16 of the Rules of this Court which provides that the court will not review any judgment once given and delivered by it except to correct any clerical mistakes or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. These two provisions do not arise in the application before us.

I shall state that this court possesses inherent power to set aside its judgment in appropriate cases. Such cases are as follows:

(i) When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Alaka v. Adekunle (1959) LLR 76; Flower v. Lloyd (1877) 6 Ch.D. 297; Olufumise v. Falana (1990) 3 NWLR (Pt. 136) 1.

(ii) When the judgment is a nullity. A person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. See Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC. 6, Craig v. Kanssen (1943) KB 256, 262 and 263; Ojiako & Ors. v. Ogueze & Ors. (1962) 1 All NLR 58, Okafor & Ors. v. Anambra State & Ors. (1991) 6 NWLR (Pt. 200) 659, 680.

(iii) When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade v. Okunoga (1961) All NLR 119 and Obimonure v. Erinosho (1966) 1 All NLR 250.

In Olorunfemi v. Asho (supra) (Suit No. SC. 13/1999), this Court in its unreported Ruling dated 18-3-99 set aside its judgment delivered on 8-1-99 on the ground that it failed to consider the respondent’s cross-appeal before allowing the appellant’s appeal. It ordered that the appeal be heard de novo by another panel of Justices of this Court. See generally Alao v. A.C.B. Ltd. (supra).

The applicant’s application does not fall within any of the above cases. The nearest to it is Asho’s case (supra), where the respondents’s cross-appeal was not considered by the court before allowing the appellant’s appeal. The applicants are contending in this application that Issue (5) in their brief which was distilled from grounds 5 and 6 of their grounds of appeal was struck out as incompetent by Mohammed, JSC., who wrote the leading judgment and that the said issue involved a consideration of title to the disputed land.

I think one should draw a distinction between failure of the court to determine a cross-appeal and failure to determine one out of several issues in an appeal determined by the Supreme Court. A cross-appeal arises where two parties to a judgment are dissatisfied with it and each accordingly appeals. The appeal of each is called a cross-appeal in relation to that of the other. Each appeal is an independent and separate complaint by the parties even though both appeals are heard together. If the appellant withdraws or discontinues his appeal, a respondent/cross-appellant may proceed with his cross-appeal just as a counter-claimant in a civil suit may prove his counter-claim where the plaintiff discontinues his own action. In other words, an issue in an appeal cannot be equated with a cross-appeal, moreso, where the non-determination of an issue in the appeal is by the Supreme Court and not by an intermediate appellate court. Even in the latter case, the substantiality of the ground of appeal or issue which was not considered must have had a decisive effect on the judgment and a miscarriage of justice must have resulted. Therefore, applications to set aside the judgment of this Court should not be taken very lightly by litigants and should not be turned into an avenue of re-arguing an appeal which was dismissed.

In the instant application, it was contended that the failure of my learned brother, Mohammed, JSC., to consider Issue (5) in the appellant’s brief which was germane to title to the land in dispute, was a fundamental error. In my opinion, the error was not such that warrants the order sought. The applicants failed to bring their case within any of the conditions under which this Court can grant the order sought.

The failure to consider Issue (5) in the leading judgment in the circumstances stated did not rob the judgment of its efficacy where the said issue was exhaustively considered and resolved against the applicants in one of the concurring opinions. It will be uncharitable on the part of the applicants to contend that Issue (5) was not considered by the Court and that the failure amounted to a denial of fair hearing. The inherent jurisdiction of the court to set aside its judgment cannot be converted to an appellate jurisdiction as though the matter before it is another appeal, intended to afford losing litigants yet another opportunity to re-state or re-argue their appeal.

It must be emphasised that this court is a court of final resort and under the Constitution, it cannot under any disguise sit on appeal over its judgment or review it except under very exceptional circumstances.

For the above reasons, I see no merit in the application and I hereby dismiss it with N1,000.00 costs to the respondents.

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SC.26/1996