Rev. Elijah Oboroh V. Patrick N.d. Oghuvwu & Anor (1999)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
The appellant and the first respondent were members of First Christ Apostolic Church Mission. But due to a dispute within that church, there was a split among the members as a result of which the appellant and the first respondent were in different camps. The appellant’s faction is known as First Christ Apostolic Church Mission while the other faction which the first respondent was a member is known as Christ Apostolic Church.
As a result of the raging dispute between the factions, the appellant lodged a report with the police at Agbarho Police Station. The first respondent and two members of his faction were arraigned before the Agbarho Senior Magistrate’s Court presided over by the 2nd respondent, Mrs. Ogene, a Senior Magistrate Grade I. The charges preferred against them are that of conspiracy and stealing of some properties of the church. The criminal trial was before the 2nd respondent. At the close of the case for the prosecution, a no case submission was made by learned counsel for the accused persons. The learned trial Senior Magistrate (now 2nd respondent) upheld the submissions in her ruling delivered on 16/9/92. The accused persons were accordingly discharged.
The learned Senior Magistrate there and then made the following order before she rose on that day:
“I therefore order the release of the said properties, Exhibits G.H-H2, J, K-K1, L, L1 and M to 1st C.A.C. to the complainants until such a time as when the properties will be shared (may be by the order of the High Court). Order is to be carried out forthwith.”
The 1st respondent was dissatisfied with the above order made by the learned Senior Magistrate in respect of the church properties tendered as exhibits during the afore-mentioned criminal trial. He therefore applied to the Ughelli High Court for an order of certiorari to quash that order of the learned Senior Magistrate releasing the exhibits in question. The matter came up before Onoriobe. J., sitting at Ughelli High Court, Delta State, as Suit No. UHC/M/14/92. The President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria was named as the complainant on the application. Mrs. Ogene, the Senior Magistrate was named as the respondent while the present 1st respondent was named as the complainant in the application. The application was ex-parte and as such the present appellant was not put on notice.
The learned judge after hearing submission from the applicant’s counsel, granted the application in his ruling delivered on 24/11/92. The learned judge gave his reason for granting the request, inter-alia, as follows in the concluding portion of his said ruling:
“Once a judge or Magistrate has pronounced judgment he is funcuts officio and any judgment reduced into writing must be looked at by Court of Appeal…
The result is that the subsequent order of the learned Senior Magistrate is made without jurisdiction and it is hereby set aside and quashed.”
The appellant was dissatisfied with the order of the learned judge. He therefore filed a motion on notice in which he prayed the court for an order setting aside the order made by Onoriobe, J., on the ground that the said order was made without any motion on notice and as such made without jurisdiction. It was contended that the order was therefore a nullity. The motion was supported by affidavit evidence and it thereafter came up for heaiing before Akpomudjere, J., also sitting at Ughelli High Court and given Suit No. UHC/M/23/92. The learned judge after hearing counsel for the parties delivered his ruling on 16/9/93. He refused to grant the prayer sought in the motion. He accordingly dismissed the motion and affirmed the earlier ruling of Onoriobe, J.
The present appeal is against the ruling of Akpomudjere, J., refusing to set aside the earlier order made by Onoriobe, J. One original ground of appeal was filed against the ruling. But with leave of this court, three additional grounds were added. The appellant and 1st respondent filed a brief each in this court. No brief was filed by the 2nd respondent. The appellant formulated the following three issues in his brief:
i. Whether the learned trial judge was justified in dismissing the appellant’s motion to set aside the order of Honourable Justice W.A.O. Onoriobe made prematurely, ultra vires and without jurisdiction in breach of Order 43 rule 5(3) High Court (Civil Procedure) Rules 1988 of former Bendel State applicable in the Delta State of Nigeria.
ii. Whether the learned trial judge was right in sitting as an appellate court over his own earlier ruling/order dated 19th January, 1993 and thereby over-ruling himself and purportedly altering the effect of his earlier order of 19/1/93 in his later ruling dated 16th September, 1993.
iii. Whether the learned trial judge was right in holding that the order of the Senior Magistrate Grade I dated 16th September, 1992, ordering the release of exhibits to the owner after discharging the accused persons in charge No. MOA/45C/92, following a no case submission which Honourable Justice W.A.O. Onoriobe quashed without jurisdiction because the magistrate was allegedly functus officio, was in fact so, and hence a nullity.”
The 1st respondent formulated five issues in his brief. The five issues are a mere repetition of the issues formulated in the appellant’s brief. I therefore do not consider it necessary to reproduce them in this judgment.
The main complaints of the appellant as canvassed in his brief are that the order made by Onoriobe, J., ought not to have been made on an ex-parte application when there was no motion on notice pending as required under Order 43 rule 5(3) of the High Court (Civil Procedure) Rules of former Bendel State 1988, applicable in Delta State. Secondly, the learned judge (Onoriobe, J.) granted a prayer not contained in the motion before his court. The only prayer in the motion before court was for leave to apply for an order of certiorari. But the learned judge erroneously went ahead to make an order quashing the order made by the learned Senior Magistrate.
It is also submitted that the proper parties to the application should be the appellant who was the party directly affected by the motion, and the 1st respondent. But that since the appellant was not put on notice, the application was incompetent. The order made by Onoriobe, J., is therefore said to be a nullity and as such Akpomudjere, J., ought not to have refused the application to set it aside.
It is also submitted that the contention that the order for the release of the Exhibits made by the learned Senior Magisrrate was proper in that the said learned Senior Magistrate was not functus officio as at the time she made the order in question. It is argued that since the order was made simultaneously with the order discharging the accused person in the criminal case before the court the contention that the order was made after the learned Senior Magistrate had been functus officio was misplaced.
It is submitted in reply in the 1st respondent’s brief that the order made by Onoriobe, J., was right in that the order made by the Senior Magistrate was a nullity since the court was already functus officio as at the time the order was made. On the failure to put the appellant on notice, it is argued that the appellant was merely a witness at the criminal trial and as such he was not a necessary party in the application to quash the order of the Senior Magistrate.
Three questions need to be answered in deciding the issues raised in this appeal. The three questions are (1) whether the order of the learned Senior Magistrate by which the Exhibits tendered in the criminal case before her were released was a nullity on the ground that the said order was made after the learned Senior Magistrate was already functus officio as at the time she made the order. (2) Whether Onoriobe. J., was right in quashing the said order having regard to the application before him and the nature of the said order sought to be quashed, and (3) Whether Akpomudjere, J., was right in refusing to set aside the order made by Onoriobe. J.
In answering the first question, reference must be made to the relevant portion of the record of proceedings. It is clear from page 16 of the record that the order of the Senior Magistrate made in respect of the Exhibits formed part of the ruling of the court on the no case submission. It is in fact the last two paragraphs of the said ruling. It is therefore wrong to say that the order was made after the learned Senior Magistrate had delivered her ruling on the no case submission. The ruling in question started from page 12 of the record and ended on page 16 with the order in question. The learned Senior Magistrate thereafter signed and dated the document
The argument adduced in support of quashing the order of the Senior Magistrate releasing the Exhibits is that the order was made after the court had become functus officio and therefore lacked the jurisdiction to make the order for the release of the Exhibits. The Latin expression, functus officio, means that a judge is not allowed to give a decision or make an order on the same matter twice. Thus a judge is only permitted to give his decision or make an order on a matter only once. Put in another form: it is a general rule of law that no court has power to rehear, review, alter or vary any judgment or order after it has been entered and drawn up, unless there are any special provisions in any particular statute granting such power: see Udo Idion Akpan Ekerete v. Udo Enwe Eke (1925) 6 NLR 118; Onyemobi v. President, Onitsha Customary Court & Ors (1995) 3 NWLR (Pt.381) 50; and Aguda, Practice & Procedure of the Supreme Court, Court of Appeal & High Courts of Nigeria, 1990, para. 44.19, page 530.
The relevant facts established in the present case, as already set out above, are that the order for the release of the exhibits was made simultaneously along with the ruling on the no case submission. It is therefore wrong to hold that the court was already functus officio as at the time it made the order in question. In fact, it has not been shown that a previous order had been made in respect of the same matter in which an order had been drawn up and signed by the learned Senior Magistrate since such is a pre-requisite before a court could be said to be functus officio.
The next question to be answered is whether Onoriobe, J., was right in quashing the said order of the learned Senior Magistrate on the ground that it was made after the court had become functus officio. There is no doubt that the answer to that question is definitely in the negative. But yet another dimension was added to the matter in that it has been alleged that there was in fact no prayer before the court for an order to quash the order in question. It is alleged that the prayer in the ex parte motion before the court was for “leave to apply for an order of certiorari” to quash the order in question. This allegation is confirmed by the record of proceedings where the ex parte motion, as set out on pages 6 to 7, is that the applicant’s only prayer was, inter alia, for leave to apply for an order of certiorari to quash the order” by which the Senior Magistrate released the exhibits in question.
The proper order which the learned trial judge (Onoriobe, J.) could have made was either to grant to refuse the leave sought. If the required leave was granted, the applicant was expected to take the next step which would be to file his motion on notice, with supporting affidavit, in which he would pray the court for an order to quash the said order. The appellant, being the party directly affected as the person to whom the exhibits were released, was a necessary party to be put on notice. It is after the necessary parties might have been put on notice that the court would be competent to entertain the application. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
But what happened in the instant case was that the learned judge (Onoriobe, J.) erroneously made an order quashing the order releasing the Exhibits to the appellant when such order was not prayed for by the applicant and when the motion before him was an ex parte one, in which case, the appellant who was the party directly affected, was not put on notice. It is settled law that no court has jurisdiction to grant what is not asked for by the parties in a case before it. This is because a court, not being a charitable institution, is strictly restricted to granting what is asked for by the parties: See Etim Ekpenyong & Ors v. Inyang Effiong Nyong & Ors. (1975) 2 SC 71 at 80-81. Since it has therefore been shown that the order made by Onoriobe, J., quashing the order made by the learned Senior Magistrate suffered from two defects (it was not asked for and the party affected was not put on notice), the order was therefore a nullity. See Madukolu v. Nkemdilim, supra.
Finally, the last question to be answered is whether, Akpomudjere, J., was right in refusing to set aside the order made by Onoribe, J., quashing the order made by the Senior Magistrate. The position of the law in this respect that the court has an inherent power to set aside its own judgment or order, including judgment or order made by his colleague of the same jurisdiction, which for any reason whatsoever is a complete nullity. See Okoli Ojiako & ors. v. Onwuma Ogueze & Ors. (1962) 1 SCNLR 112; (1962) 1 All NLR 58; Udo Idion Akpan Ekerete v. Udo Enwe Eke (1925) 6 NLR 118; Salisun Idris Siliyun & Ors. v. Alhaji Dan Mashi & ors. (1975) 1 NMLR 55 at 58; Craig v. Kaussen (1943) K.B. 256; and Aguda, Practice & Practice of the Supreme Court etc., supra para 44, 21 page 531. Since it has been shown above that the order made by Onoribe, J. was totally a nullity, it was within the power of the same judge (Onoriobe, J.,) or any of his colleagues in the same jurisdiction, of which Akpomudjere, J. was one, to set aside such an order made which has been shown to be a complete nullity as in the instant case. In the result, I hold that it was wrong on the part of Akpomudjere, J. to have refused to set aside the order made by Onoriobe, J.
In conclusion therefore and for the reasons given above, I hold that there is merit in the appeal and I accordingly allow it. The order made by Onoriobe, J. by which he quashed the order of the Senior Magistrate releasing the exhibits in the criminal case to the appellant, being a nullity, is hereby set aside. Similarly, the order made by Akpomudjere, J, by which he refused to set aside the said order made by Onoriobe, J., is hereby set aside. In its place, I hereby substitute an order setting aside the said order made by Onoriobe, J, on the ground that the said order was a nullity. The order of the learned Senior Magistrate releasing the exhibits in question to the appellant is according affirmed. The appellant is awarded N3,000.00 costs against the 1st respondent.
Other Citations: (1999)LCN/0625(CA)
