Chief Ukwadinamor Clement Uchechukwu V. Joan Onyemaechi Bielonwu & Ors (2008)

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OGUNWUMIJU, J.C.A.

This is a motion on notice dated 24/9/08 filed on the same day. It is for the following orders:-

“1. An order setting aside the judgment/or order of this Honourable Court delivered on 17th of July, 2008, granting the appellant’s motion dated and filed on the 25th day of June, 2007 for extention of time within which to apply for issuance of pre hearing notice as in Form TF 007, for being a nullity or null judgment/order.

2. An order setting aside the judgment of this Honourable Court delivered on the 17th July, 2008 granting the appellant’s motion dated and filed on 25th June, 2007 for extension of time for the issuance of pre hearing notice as in Form TF 007, for lack of jurisdiction.

3. An order staying the execution of the said judgment of 17/7/08 and any other parties including the Appellant and 2nd – 11th Respondents from enforcing same or taking any step or further step in its enforcement in any form whatsoever pending the determination of the application.”

Dr. Izinyon SAN who moved the application submitted that the application is brought subject to the inherent jurisdiction of this court. In support 13 grounds were filed with a 7 paragraph affidavit. Learned senior counsel argued that the issue before this court is whether the application is competent. He submitted that there is an error which makes the judgment of this court a nullity. He argued that the implication of the Supreme Court judgment in OKEREKE v. YAR’ ADUA (2008) 12 NWLR Pt. 1100 Pg. 95 is that no extension of time can be granted in respect of election matters. He argued that it is a different thing if the judgment had been drawn to the attention of the court and this court made a distinction. He urged the court to declare the judgment of this court a nullity and to set aside. He argued that the case of EKE v. OGBONDA (2007) All FWLR Pt. 351 Pg. 1456 is inapplicable to this case.

Mr. Uhumwangho opposed the application for the Respondent and filed a 5 paragraph counter affidavit. He urged the court to distinguish the facts in OKEREKE v. YAR’ADUA from the facts of this case. He submitted that the application did not satisfy any of the circumstances when a court can be called upon to set aside its own judgment. He urged the court not to grant an application brought through the back door. He submitted that the case cited OKEREKE v. YAR’ ADUA is to the effect at pg. 115 – 116 that it is the 1st Schedule to the Electoral Act, 2006 that applies. He submitted that this court had jurisdiction in the appeal brought before it. He cited EKE v. OGBONDA (2007) All FWLR Pt. 351 Pg.1456.

The sole basis of the applicant’s application is contained in grounds 10 and 11 which state as follows:-

“10. The decision of this honourable court on 17/7/08 in the face of the Supreme Court decision of 19/5/08 is a nullity and same was delivered without jurisdiction.

11. Allowing the decision of 17/7/08 to stand in the light of the Supreme Court decision of 19/5/08 will work considerable hardship, injustice and erosion of the age long stare decisis principle upon which the hierarchy of courts is built under section 6 of the Constitution of the Federal Republic of Nigeria.”

The major point being hammered by applicant’s counsel is that the judgment of this court did not take into consideration the judgment of the supreme court in OKEREKE V. YAR’ADUA (2008) 12 NWLR Pt. 1100 pg. 95 in respect of the mandatory provisions of the Practice Directions made by the President of the Court of Appeal pursuant to the Electoral Act 2006. The Supreme Court held at pg. 118 of the NWLR that non-compliance with the mandatory provisions of the Practice Directions will strip the tribunal or court of jurisdiction. The Supreme Court held that the Court of Appeal being the court of first instance in presidential election matters was wrong to have heard motions before pre hearing sessions were ordered and thus the appellant failed to comply with the condition precedent to the exercise of the court’s jurisdiction. The judgment of this court sought to be set aside is in direct conflict with the judgment of the Supreme Court in the same matter on the issue of the mandatory nature of pre hearing session. The doctrine of stare decisis enjoins us to follow the judgment of a superior court of record. However, in this case the judgment of the Supreme Court was not brought to the attention of the justices during the hearing of the appeal. It is the duty of counsel to assist the court by bringing all previous decisions to its attention. The judgment of this court was delivered on 17/7/08 while the judgment of the Supreme Court was delivered on 9th May, 2008.

I have read EKE v. OGBONDA cited by the Respondent’s counsel.

In EKE v. OGBONDA, the Court of Appeal gave judgment after hearing when the Respondent did not file brief and after the case was reserved for judgment but before the motion to stay further proceedings was heard. The Supreme Court held that the Court of Appeal was right in delivering its judgment since the court had created an environment of fair hearing, it was left to the Respondent/Appellant to take advantage of it and dismissed the appeal. The principle laid down therein is not helpful one way or another to the determination of whether this court has jurisdiction to set aside its own decision made with competence as a final court on the merits in respect of issues adumbrated by counsel.The general principle of law is that this court lacks jurisdiction to set aside its own judgment except in certain circumstances. See NATHAN ONWUKA v. BEN MADUKA (2002) 9 SCNJ 113, (2002) 18 NWLR Pt. 799 Pg. 586. The Court of Appeal lacks powers to review its own judgment save in respect of clerical mistakes, accidental slips and omissions – See REV. HYDE ONUAGULUCHI v. MR. BEN COLLINS NDU (2001) 3 SCNJ 110 and (2001) 7 NWLR Pt. 712 Pg. 309. Also a judgment obtained by fraud, void judgment and judgment obtained under the mistaken belief that parties consented to it will be set aside. See ALH. TAOFEEK ALAO v. A.C.B. (2000) 6 SCNJ 63, (2000) 9 NWLR Pt. 672 Pg. 264.

The court has inherent powers to set aside its own judgment which is a nullity See KALU MARK V. GABRIEL EKE (2004) 1 SCNJ 243, (2004) 5 NWLR Pt. 865 Pg. 54 SC, AUTO IMPORT EXPORT V. J.A.A. ADEBAYO (2002) 12 SCNJ 124, (2006) 18 NWLR Pt. 1012 Pg. 506.

However there are limits to the powers of this court to vary its own judgment. Misdirection or error of law in judgment cannot be corrected. See ALAO V. A.C.B. (2000) 6 SCNJ 63, (2000) 9 NWLR (Pt. 672) 264.

Any order or judgment made within jurisdiction is not a nullity or invalid even if it is erroneous in law and in fact or perverse. GENERAL & AVIATION SERVICES LTD. v. CAPTAIN PAUL M. THAHAL (2004) 4 SCNJ 89, (2004) 10 NWLR Pt. 880 Pg. 50.

A wrong judgment is not a nullity when the court was not incompetent. ALH. JIDDUN v. ABBA ABUNA & ANOR. (2000) 10 SCNJ 14, (2000) 14 NWLR Pt. 686 Pg. 209.

The judgment of this court was given on the merits and is a final decision on this matter by virtue of S. 246 of the 1999 Constitution, when judgment is given on the merits, the court is funtus officio. See MOHAMMED v. MOHAMMED HUSSIENI (1998) 12 SCNJ 136, (1998) 14 NWLR Pt. 584 Pg. 108.

This application was brought under S. 6(6) of the 1999 Constitution. The court is enjoined to exercise caution to ensure that the powers of the court to review or set aside its own judgment is not converted to an appellate jurisdiction or an avenue of re-arguing an appeal. See CHIEF KALU IGWE v. CHIEF OKWUKA KALU (2002) 7 SCNJ 336; (2002) 14 NWLR Pt. 787 Pg. 435.

The Applicant participated fully at the hearing of the appeal. The Applicant cannot have a second bite at the cherry. The court cannot sit as an appellate court over itself. See AKANDE OLOWU v. AMUNDATU ABOLORE (1993) 6 SCNJ 1. Lack of jurisdiction can be raised before delivery of judgment at the Supreme Court as the final court but not afterwards. See TIMOTHY ADEILO ADEFULU v. CHIEF O.O. OKULAJA (1998) 4 SCNJ 139.

In ADIGUN AND 2 ORS V. ATT. GEN. OYO (1987) THE ALL NIGERIA LAW REPORTS PG. 328, (1987) 2 NWLR Pt. 56 Pg. 197 the Supreme Court held that S. 6 (6) of the 1979 Constitution which is in pari materia with S. 6 (6) of the 1999 Constitution provides that the judicial powers vested in the courts which shall extend not withstanding anything to the contrary in the constitution to all inherent powers and sanctions of a court of law does not empower the court to review its own decision. If it were otherwise there would be no finality about any judgment and every affected litigant could bring further appeals or motions to set aside the judgment as it were ad infinitum. That is a situation that must not be permitted.

Coker JSC in that judgment held that it would be scandalous if judges invested with the power of finality of court decisions would use its inherent powers after delivering a well considered judgment to turn around to deliver a different one in respect of the same case.

Esho JSC in that judgment was of the firm view that the decision of the Supreme Court is final. Final in the sense of real finality in so far as the particular case before the court is concerned. It is final forever, except there is legislation to the contrary and it has to be legislation ad hominen. Although the Supreme Court may depart from a principle laid down in a particular decision in future cases that does not alter the right or privilege or detriment to the party concerned in that case.

The Court of Appeal being invested with finality in some election petition matters by virtue of S. 246 (3) of the 1999 Constitution is mutantis mutandis in the same position as the Supreme Court and will not permit a reversal or review of its judgment.

In OBIOHA v. IBERO (1994) 1 NWLR Pt. 322 Pg 503, the applicants sought an order of the Supreme Court to set aside its own judgment on among other grounds that the court’s decision was a nullity because the court lacked jurisdiction to decide on and interpret certain documents. The situation we have on hand in this application is on all fours with the situation faced by the Supreme Court in OBIOHA v. IBERO supra. Therein, Belgore JSC (as he then was) who wrote the lead judgment put the law thus at pg 520-521:

“What this court is being asked to do, is to review its judgment, not to correct clerical errors or errors from accidental slip or omission, but to overturn its own judgment already given. This court has consistently refused to be dragged into this pitfall. The purpose of this application is clear, it is an appeal cloaked in the guise of a motion. From the wordings of a motion and the grounds for bringing it, it is manifestly clear that the validity of the judgment of this court as given on 26th February, 1993 is being challenged … Once the supreme court has entered judgment in a case, that decision is final and will remain so for ever. The law may in future be amended to affect future issues on the same subject, but for the case decided, that is the end of the matter … It is emphatically restated that this motion with a double edged sword of alleged powers under the Constitution S. 6 (6)(a) and under the Rules (Order 8 rule 16) should once and for all be nailed in its coffin. The law does not permit this court a double say in the same matter. It either allows or dismisses an appeal, not the two on the same issue. The inherent powers under S. 6 (6) of the Constitution cannot be invoked to reverse a decision already given by this court…”

It is quite clear that the inherent powers of the court to vary its judgment by amending any slip or setting aside a judgment erroneously entered in default of appearance to allow a cause be heard on the merits cannot be used to enjoin the court to revisit its own judgment on the merit. The question here is that can the decision of this court invested with constitutional finality be set aside by reason of its being arrived at per incuriam? A judgment per incuriam is one which has been rendered inadvertently. For example where the judge has forgotten to take into consideration a previous decision to which the doctrine of stare decisis applies. For all the care with which counsel and judges may comb the law books, errare humanum est, sometimes a judgment which clarifies a point to be settled is somehow forgotten. Such a judgment which contradicts a settled principle of law by a superior court is said to be per incuriam. It cannot for that reason only be set aside. When the judgment is deemed per incurium the implication is that it cannot be used as authority or precedents by courts of concurrent or inferior jurisdiction. See Rosseck v. ACB (1993) 8 NWLR Pt. 312 pg.382.

As Esho JSC aptly puts it, the society cannot be stable if there is no finality in litigation. As it is usually put, there must be an end to litigation. The judgment of this court delivered on 11th July, 2008 is the final decision of this court between the parties. It binds all persons and authority.

This application is unmeritorious and is hereby dismissed. N10, 000 costs for the Respondent against the Applicant.

Other Citations: (2008)LCN/2940(CA)