The Power of the Court to Set Aside its own Verdict; an Exception to the Doctrine of Functus Officio

Introduction

Generally, the  legal procedure  allows the courts to determine any case before it which the court has a legal capacity or required jurisdiction to determine such matters (This is pursuant to section 6 of the 1999 constitution).

However, where court reaches judgement that court, under the general rule has ceased to possess the power to change its judgement , revise or alter the proceedings . This inability to move from its decisions or judgment is what in legal parlance is referred as FUNCTUS OFFICIO .

Thus,  where a party is dissatisfied with the judgement of trial court he can only appeal to the appeal court for judgement review and can not be done by the court which delivered the judgement.

However, there are exception to this common law doctrine which allows trial courts to set aside its judgement suo moto in  consideration of some viable grounds in order to justify justice and fair deliverance of judgement in the court of law.

Meaning of Functus Officio

The phrase “functus officio” means a task performed having fulfilled the function, discharged the office,  or accomplished the purpose, and therefore of no further force or authority. it means that once a Court has decided a matter before it, that Court has no further force or authority over the matter and it lacks competence or jurisdiction to review or revisit its decision and/ or to re-open the said matter for further deliberations.

It cannot assume appellate status over its decision, except under exceptional circumstances and where there is a statutory provision in that regard  (see the case of Buhari Vs Independent National Electoral Commission (2008) 19 NWLR (pt 1220) 246,  and the case of Federal Polytechnic, Idah Vs Onoja (2012) 12 NWLR (Pt 1313) 72,)

It was held in the case of EGWU v. MAINSTREET BANK (2017) LPELR-43395(CA) –  that

 “It is settled law that where this Court delivers a Ruling or makes an order on an application of a party and/ or enters judgment in an appeal, it becomes functus Officio and it cannot revisit or review its said decision, order or judgment and it cannot set same aside” . To do that will make court to sit on appeal on its own decision “.

Similarly court held in the case of ARINZE v. ACCESS BANK & ANOR (2021) LPELR-55486(CA) That:  “it is trite law that once a Court makes an order or gives judgment in an action, it becomes functus officio and ceases to possess the power to vary or review such order or judgment”.

However, before this doctrine could bind a court ,the case or matter before the court must become res judicata or the final judicial consideration of the matter by the court . According to the supreme court in the case of Umeh & Anor vs. Okwu & Ors (2014) per Onnoghen JSC ,

“…A decision is said to be final when the Court that gave the decision has nothing else or nothing more to do with the case, to the extent that the Court become functus officio, a Latin term which literally means “having performed his or her office”.

Thus, where court gives it’s  final order it becomes tied to its own judgement (i.e FUNCTUS OFFICIO) and the order become  permanent, unchangeable by the court made it and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or change that order. The Court is, by virtue of the order, functus officio and the only option to the parties is by way of appeal against that order.

 In addition to the above postulation, in the case of  SANUSI vs. AYOOLA & ORS (1992) LPELR-3009 (SC)  19. It was held that where the court made its final stance on an issue  “it was no longer within the legal competence of the same trial Court to revisit the same issue in the same proceedings and reverse itself. Its duty/function had been performed and accomplished on the issue of its jurisdiction over the case, and it had nothing more to do on the issue or to subtract therefrom. It had become FUNCTUS OFFICIO and could no longer have a second bite at the cherry”.

However, this doctrine of law that disallows trial courts to reopen or revisits a matter that it has adjudged is not without exceptions. These exception is to ensure the fair play in proceedings, and it borders mostly on preserving the fundamental rights of the parties and also recognizing the human fallibility of judges thereby giving a decision per in curiam as a result of misleading or misdirection of court by the parties.

Whether Court Can Set Aside Its Own Judgement Despite the Doctrine of Functus Officio

As encapsulated above  generally this is a restrain  doctrine that prohibits court from re-entertaining  a matter it decides at the trial stage. However, the doctrine has  exception because the Nigerian courts are hybrid of common law and equity.

Under Nigerian legal system ,a court is empowered to set aside its own verdict . To cite a few instances where a court can set aside its judgement below:

First, where a decision is reached without jurisdiction. When a court delivers judgment that it lacks jurisdiction or legal capacity to entertain such judgement can be set aside , not necessarily on appeal, but by the court which rendered the judgement .

To substantiate the position judicially, The Apex court  held in the case of NDIC v. ROSABOL (NIG) LTD & ORS (2017) LPELR-41925(CA)  that :

“it is true that every Court of Record possesses inherent powers to set aside its own judgment where such a judgment is afflicted by fundamental vices such as, though not an exhaustive list, where the suit was commenced without due process of law or was wrongly constituted or vitiated by fraud or breach of right to fair hearing or LACK OF JURISDICTION or given in default. See Madukolu V. Nkemdilim (1962) 2 All NLR 581. “ (Capitalized mine)

 The court in its inherent jurisdiction has the power to set aside its own judgment or order made without jurisdiction or if same has been fraudulently obtained. In such a circumstance, an appeal for the purpose of having the null judgment or order cannot be said to be necessary. See Bello v. INEC & 2 ORS. (2010) 8 NWLR (Part 1196) 342.

Second , where a decision is reached without a service of originating processes to the Defendant on the case. Where a party to a suit is not properly served as enjoined by the law, the  judgement delivered in form of default can be set aside by the court that delivered the said decision . This is to fulfill the requirements of section 36 of 1999 constitution which entitled every person the right to fair hearing at the trial .

This view is cemented by the court decision in the case of ODEY V. ALAGA (2021) 13 NWLR (PT. 1792) 1 where the court categorically stated that:

“…service of an initiating process, like the notice of appeal, has a link with the Right to fair hearing enshrined in the Constitution of the Federal Republic of Nigeria. Thus, where service is not effected as required by law, as in the requirement of the law that an originating process, like the notice of appeal, must be served personally on the respondent, the person who was improperly served is entitled. ex debito justitiae, to have the purported service set aside as a nullity, because any breach of the Right to fair hearing renders the proceedings a nullity. [Ihedioha v. Okorocha (2016) 1 NWLR (Pt. 1492) 147…” In a similar instance the court reiterated the  same position  in the case of EZIM V. MENAKAYA (2018) 9 NWLR (PT. 1623) 113.

Third, where a judgement is obtained by fraud . A court can set aside any of its judgement obtained by fraud. That is where a court is made to believe that a party has been properly served as a result it gives a default judgement against the Defendant, such judgement if proved to be fraudulently obtained can equally be set aside as it infringes on the fundamental, in other words, constitutional right  of the Defendant to fair hearing which is a fundamental defect that goes to the root of every trial .

 The court declared strongly inter Alia, in the case of UBA PLC v. MUSA & ANOR  (2018) LPELR-45627(CA). That : “fair hearing is the pivot upon which the entire judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing……..this right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground”.

However, the  power of court to set aside its decisions ,it is matter of discretion . Thus, a court can not be compelled to visit it’s own verdict in order set it aside . Hence, when exercising discretionary power a court is enjoined to be judicious and judicial . It must not stray from the justice lane or path  ; it must observe fairness and just construction of law.

 Subsequently, the court of appeal emphasized the position in the case of  CHIEF ADISA SOWEMIMO & ANOR V KANEM NIGERIA LIMITED & ANOR  LER[2018]CA/L/879A/2015  where the court held inter alia:

“In law judicial discretion is clearly a sacred power which inheres to a judge in appropriate and deserving cases. It is indeed a type of amour, speaking metaphorically, which a judge should and ought to employ JUDICIALLY AND JUDICIOUSLY whenever the need arises to arrive at just and fair decisions. Thus, going by its purpose and usefulness, it a very vital tool in the due administration of justice and therefore, very importantly must not be exercised carelessly or arbitrarily or whimsically or radically or revolutionary with little or no regards to the facts and circumstances of the case.”

Conclusion

From the above judicial endorsement and reiteration it is glaring that despite the doctrine of FUNCTUS OFFICIO, the court has power to set aside its own decision in some special circumstances. It is a discretion given to the court to rectify defect occasioned during the proceedings before  it.

About Author

AKILU SAADU is a 300 level law student of the faculty of law, Ahmadu Bello University, Zaria. He can be reached via his email address: [email protected].