Rev. Segun Ademola Alli V. National Universities Commission & Anor (2018)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The applicant, Rev. Segun Ademola Alli by motion on notice filed on 31/3/2016 praying the Court for the following orders: –

1. An order of this Court setting aside the Ruling delivered on Monday, 29th February, 2016 in this appeal.
2. An order of this Court directing this appeal to be relisted for hearing on the merits.
3. And for such further order or orders as this Court may deem fit to make in the circumstances.

The grounds upon which this application is based are set down hereunder, viz:-

1. This Honourable Court on Monday, 29th February, 2016 delivered a bench ruling in this appeal.
2. The 1st respondent’s motion upon which the ruling was based is incompetent and incurably defective on all facts and it is an abuse of the process of this Honourable Court.
3. The jurisdiction of this Honourable Court can only be activated by a competent process.
4. This Honourable Court relied and acted on the incompetent process filed by the 1st respondent on the 26th March, 2015 in arriving at its decision (now being sought to be set aside), hence a nullity.

The learned justice of the Supreme Court who read the leading bench ruling inadvertently adopted a wrong approach in relation to this matter by discountenancing appellant’s counter affidavit and written address.

6. The law is that the Court must take an overview of the entire case in the application brought before it to determine whether it has jurisdiction or not.
7. The ruling of this Honourable Court was based on a legally inadmissible document.
8. This Honourable Court possesses the power, ex debito justitiae, to set aside its ruling delivered in this matter and substitute thereof an order that meets the justice of the case.
9. An order of this Honourable Court without its jurisdiction being properly and antecedent (sic) activated is a nullity.
10. None of the Respondents herein will be prejudiced by the grant of this application.
11. It is in the interest of justice, fairness and the development of the law that this application be granted.The application is supported by a 31 paragraphs affidavit deposed to by the applicant himself. I shall recast some of the relevant paragraphs of the affidavit thus:-

I am the appellant in this appeal, by virtue of which I am conversant with the facts deposed to in this affidavit.

2. That on the 25th March, 2015, the 1st respondent filed an undated motion on notice accompanied by a 17 paragraph affidavit, with one exhibit attached (EXHIBIT KGA1), and a written address. A certified true copy of the said motion with the accompanying processes is hereby attached and marked as EXHIBIT A.
3. That the said motion mentioned in paragraph 2 of this affidavit prayed this Honourable Court to dismiss this appeal “in its entirety same having become academic as there are no live issues to be determined in the appeal” on the ground that “a fresh assessment of the 2nd respondent has been duly carried out with Council of Legal Education and a formal approval have been given to the 2nd respondent to establish a law faculty.”
4. That the said fresh approval mentioned in paragraphs 3 of this affidavit was given on subject matter of this appeal during the pendency of this appeal.
5. That the said motion mentioned in paragraph 2 of this affidavit was prepared and signed by Barrister

Peter Erivwode, of counsel, a legal practitioner in the law firm of Kanu G. Agabi (CON) SAN & Associates.

6. That the said affidavit mentioned in paragraph 2 of this affidavit was deposed to by Barrister Peter Erivwode, of Counsel, a legal practitioner in law firm of Kanu G. Agabi (CON) SAN & Associates, and the same Barrister Peter Erivwode signed as the deponent.
7. That the said written address mentioned in paragraph 2 of this affidavit was prepared and signed by Barrister Peter Erivwode, of Counsel, a legal practitioner in the law firm of Kanu G. Agabi (CON) SAN & Associates.
8. That the said EXHIBIT KGA1 mentioned in paragraph 2 of this affidavit is a photocopy of an uncertified public document.
9. That the Appellant/Applicant filed a 24 paragraph Counter-Affidavit with a written legal address filed on the 13th April, 2015 in opposition to the 1st Respondent’s said processes mentioned in paragraph 3 of this affidavit. A certified true copy of the said counter-affidavit is hereby attached and marked as EXHIBIT ‘B’.
10. That on the 4th June, 2015 the Appellant/Applicant filed Supplementary List of Authorities to the written

legal address mentioned in paragraph 9 of this affidavit. A Certified True Copy of the said Supplementary List of Authorities is hereby attached and marked as EXHIBIT ‘C’.

11. That the 1st Respondent filed a 7 paragraph further affidavit on the 6th October, 2015. A Certified True Copy of the said further Affidavit is hereby attached and marked as EXHIBIT ‘D’.
12. That on 12th October, 2015 when the 1st Respondent’s motion EXHIBIT ‘A’ was to be moved, this Honourable Court presided over by Hon. Justice I. T. Mohammed, JSC, discovered that EXHIBIT ‘B’ was not in the Court file and the files of other justices on the panel.
13. That upon enquiry by the Presiding Justice, Hon. Justice I. T. Muhammed, JSC, the said Exhibit ‘B’ was inadvertently kept by the Registrar of the Court.
14. That the said EXHIBIT ‘B’ was handed over by the Court Registrar to the justices on the panel in open Court at the sitting of 12th October, 2015.
15. That flowing from paragraphs 13 and 14 of this affidavit, this Honourable Court adjourned the hearing of all other motions in this appeal to 29th February, 2016 while the appeal was fixed for 21st March, 2016

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consequent upon the gracious grant of the Appellant/Applicant’s application for accelerated hearing of this appeal.

16. That on Monday, 29th February, 2016 this Honourable Court adjudicated upon the said motion of the 1st Respondent EXHIBIT ‘A’.
17. That this Honourable Court on Monday, 29th February 2016 granted the prayers of the 1st Respondent as contained in its undated motion filed on 26th March, 2015 (EXHIBIT ‘A’) in a leading Ruling delivered by His Lordship, Hon. Justice W.S.N Onnoghen, JSC. A Certified True Copy of the said ruling is hereby attached and marked as Exhibit ‘E’.
18. That the said 1st Respondent’s motion (EXHIBIT ‘A’) upon which the said ruling (EXHIBIT ‘E’) mentioned in paragraph 17 of this affidavit was predicated is incompetent.

PARTICULARS

(i) Barrister Peter Erivwode, of Counsel, a legal practitioner in the law firm of Kanu G. Agabi (CON) SAN & Associates is the counsel who prepared and signed the motion; deposed to and signed as deponent in the affidavit in support; and, also signed the written address all at the same time.

19. That the 1st Respondent’s motion-Exhibit A constitutes an abuse of Court process-

PARTICULARS

(i) The 1st Respondent has incorporated and argued the issue of the appeal being academic at page 7, paragraphs 3.08-3.10 of its Respondent’s Brief of Argument dated 31st January, 2014 and filed on the 3rd February, 2014 in this appeal and to which a reply has been proffered at page 5, paragraph 1.10 of Appellant’s Reply Brief dated 18th February, 2014 and filed on the 19th February, 2014 in this appeal.

20. That the Appellant/Applicant brought to knowledge of the Honourable Court the incompetence of 1st Respondent’s motion filed on 26th March, 2015 (EXHIBIT ‘A’) in his counter – affidavit and written address filed on 13th April, 2015 (EXHIBIT ‘B’).
21. That this Honourable Court relied and acted only on EXHIBIT ‘A’ at the proceedings and its ruling on Monday, 29th February, 2016.
22. That this Honourable Court discountenanced the Appellant’s Counter-Affidavit and written Address (Exhibit ‘B’) in arriving at its ruling delivered on Monday, 29th February, 2016.
23. That this Honourable Court at its proceedings of 29th February, 2016 and its ruling of 29th February 2016 did not take an over view of the entire

application brought before it to determine whether it has jurisdiction or not to adjudicate on the 1st Respondent’s motion (EXHIBIT ‘A’).

24. That flowing from paragraphs 17 and 18 of this affidavit the Court is robbed of the jurisdiction to entertain the 1st Respondent’s said application.
25. That flowing from paragraphs 17 and 18 of this affidavit this Honourable Court does not have the jurisdiction to entertain incompetent process and any process that constitutes abuse of process.
26. That flowing from paragraphs 17 and 18 of this affidavit, the proceedings of this Honourable Court in this appeal on the 29th February, 2016 was held without jurisdiction.
27. That flowing from paragraphs 17 and 18 of this affidavit the said Ruling of this Honourable Court delivered on the 29th February, 2016 was given without jurisdiction.
28. That this Honourable Court has the power to set aside its Ruling delivered in the absence of jurisdiction on the 29th February, 2016 in this appeal.
29. That it will be in the interest of justice to grant this application.
30. That the Respondents would not be prejudiced by the grant of this application.

Attached to the motion paper is appellant/applicants written address in support of the motion.

The 1st respondent filed a counter affidavit on 13th June, 2016 of 21 paragraphs and I shall recast most of them hereunder, viz: –

I, DUNCAN OLUOHU, male, Christian, Nigerian Citizen, of Trinity House, plot 943, Cadastral Zone 806, (Behind Federal Ministry of Works) Mabushi, Abuja, hereby make oath and state that:

1. I am a legal practitioner in the Law Firm of Kanu G. Agabi, Counsel to the 1st Respondent.
2. By virtue of my duties in the said firm, I am familiar with the facts of the case and I have the consent and authority of the 1st Respondent as well as that of my employer to depose to this counter affidavit.
3. I know as a fact that on the 26th day of March 2015, the 1st Respondent filed an application praying this Honourable Court to dismiss the Applicant’s appeal on the ground that the said appeal had become academic and there are no life issues to be determined by this Honourable Court.
4. The said application was duly served on the applicant on the 30th day of March, 2015 and the Applicant in reaction

to the said application filed a counter-affidavit on the 13th day of April, 2015.

5. The 1st Respondent’s application seeking to dismiss the Applicant’s appeal was heard on the 29th day of February, 2016 and this Honourable Court in a considered ruling dismissed the said appeal, on the ground that same has been overtaken by event and consequently academic.
6. I know as a fact that based on the ruling of this Honourable Court delivered on the 29th day of February, 2016, Appeal No: SC/642/2013 is duly determined and nothing can be done about it.
7. On the 31st day of March, 2016 the Applicant filed an application praying this Honourabre Court to set aside its ruling delivered on the 29th day of February 2016 and praying this Court for an order setting aside its ruling on 29th February, 2016 and relisting an unspecified appeal.
8. The Applicants application is an invitation for this Honourable Court to sit on appeal over its own decision.
9. The grounds of the Applicant’s application as contained in the said motion are the same grounds contained in the applicant’s counter affidavit in opposition to the 1st Respondent’s motion

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dated the 26th day of March 2015, which was heard and upon which Appeal No: SC/642/2013 was duly dismissed; thereby making the applicant’s current application baseless and academic.

10. I know as a fact that the Applicant is not qualified to file legal processes before this Honourable Court as he is not a Legal Practitioner whose name is-contained in the Roll.
11. The facts deposed to in the Applicant’s affidavit in support of his motion are the same as the facts deposed to in the applicant’s counter affidavit, in opposition to the 1st respondent’s motion dated the 26th day of March 2015 upon which this Honourable Court dismissed the appeal No: SC/642/20L3; thus the Applicant’s instant application is an abuse of the processes of this Honourable Court.
12. The said Applicants counter affidavit is here shown to me and marked as EXHIBIT KGA 1.
13. The Applicant’s application in its entirety is a gross abuse of the process of this Honourable Court and ought not to be given any consideration by this Honourable Court.
14. The Applicant’s affidavit in support of the application is bereft of any material facts upon which this Honourable Court

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may exercise its discretion in favour of the application.

15. By the ruling of this Honourable Court delivered on the 29th day of February 2016, Appeal No: SC/642/2013 was not struck out but dismissed and as such same cannot be relisted.
16. This Honourable Court does not just for the asking set aside its ruling and the applicant has not shown any reason why this Honourable Court should depart from its ruling.

Along with the counter affidavit was filed a written address of counsel in opposition to the application.

On the 22nd January, 2018 the appellant in person adopted his process including a further affidavit filed on 8/7/2016, a further affidavit filed on 23/11/2016 and a supplementary list of authorities filed on 27/9/2016.

Learned counsel for the 1st respondent also adopted its process relying on the arguments in their address.

The 2nd respondent was absent and not represented though there was proof of service of the hearing notice and they did not file any process.

Appellant formulated two issues for determination which are thus: –

1. Whether or not the Ruling of this Court delivered on Monday 29th March, 2016

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should be set aside for its being a nullity having regard to all the circumstances.

2. Whether or not this Honourable Court has jurisdiction to set aside its own ruling which is a nullity.

The respondent crafted two issues for determination which are as follows: –

(i) Whether the applicant’s application is not a gross abuse of the process of this Honourable Court.

(ii) Whether the applicant is entitled to the reliefs sought in this application.

Clearly the two positions are stating the same things only differently and so I shall simply combine the questions into a single issue thus: –

Whether the application is not a gross abuse of the processes of this Court and if the applicant is entitled to the reliefs he seeks.

Learned counsel for the appellant contended that this application being fought on affidavits, the evidence at play is what is averred in the affidavit. He cited National Insurance Commission v. Aminu (2012) 8 NWLR (pt.1302) 330 at 360.

That for a Court to assume jurisdiction on a matter before it, the Court must ensure that the process before it has been brought in due process without a disabling feature

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which is to rob the Court of its jurisdiction. He cited Madukolu V. Nkemdilim (1962) 2 SCNLR 341 at 348; Hamzat v. Sanni (2015) 1 SCM 174 at 184, 191; Lokpobiri v. Ogola & Ors (2015) 10 SCM 44 at 60.

That the deponent of the 1st respondent’s affidavit to the motion that led to the striking out is incompetent to depose thereto being counsel to the 1st respondent and so cannot be a witness too. He referred to Section 20(1) of the Rules of Professional Conduct for Legal Practitioners 2007; Ojiegbe v. Ubani (1961) 1 SCNLR 389 at 391; Ekpeto & Ors v. Wanogho (2004) 9-12 SCM (pt.2) 36 at 49; Anyika & CO v. U. O. Uzor (2006) 10-11 SCM 198 at 208.

That the implication of the incompetent affidavit in support of that motion-EXHIBIT ‘A’ translates to the motion itself being incompetent and thereby robbed the Court of jurisdiction to entertain the application. He cited Ofia v. Ejem (2006) 11 NWLR (pt.992) 652 at 663.

The appellant stated further that assuming but not conceding that the deponent to the said affidavit in support of EXHIBIT ‘A’ is competent to depose to it, the affidavit is fundamentally defective as the deponent failed to disclose

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his source of information in paragraphs 6-15 of the said affidavit in support as this was in breach of Section 115 (1), (2), (3) and (4) of the Evidence Act 2011. He referred to VEEPEE Ind. Ltd v. Cocoa Ind. Ltd (2008) 13 NWLR (pt.1105) 486 at 511; Edu v. Commissioner for Agriculture (2000) 12 NWLR (pt.681) 316 at 333-334.

That 1st respondents EXHIBIT KGA1 upon which the ruling of this Court was delivered on 29th February, 2016 – EXHIBIT ‘E’ was based is an uncertified photocopy of a public document and should be discountenanced. He cited Iteogu v. LPDC (2009) 17 NWLR (pt. 1171) 614 at 634; Section 90(1) (c) of the Evidence Act 2011 etc.

That the further affidavit EXHIBIT ‘D’ is a face saving attempt to deny the fact that Barrister Peter Erivwode of counsel is the deponent and surreptitiously made a plea of non est factum which cannot hold as he is bound by the document which he signed. He relied on Okoli v. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (pt.1053) 37 at 74-75 etc.

The appellant submitted that this Court failed to consider his counter affidavit Exhibit B before its ruling and that failure prejudiced his interest and a denial of his right to

fair hearing. He cited Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 715; James v. INEC (2015) 5 SCM 122 at 154; Adeleke v. Anike (2006) 16 NWLR (pt.1004) 131 at 164.

That this Court has the inherent jurisdiction to set aside its own judgment or ruling given in any proceeding where there has been a fundamental defect such as the present given without jurisdiction and competence of Court. He referred to Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (pt.109) 250 at 275; Bello v. INEC & Anor (2010) 3 SCM 1 at 20-21.

Responding, learned counsel for the 1st respondent stated that by the appeal, the applicant is seeking to resuscitate what has become lifeless and the application therefore is a waste of this Court’s time and being academic should be discountenanced. He cited Awojugbagbe Light Industries Ltd v. Chinukwe (1995) 4 NWLR (pt.390) 379 at 410.

That the appellant/applicant is not entitled to the reliefs he seeks as he is through another route asking this Court to review its decision which has not been statutorily or constitutionally provided for. He cited Famu & Ors v. Kassim & Ors

(2013) 7 NWLR (pt.1352) 166; Omoju v FRN (2008) 7 NWLR (Pt.1085) 38.

He further stated that the conditions on which the Court could relist a matter earlier struck out or dismissed are not in existence in this case at hand. He cited N. N. S. C. v. E. S. V. (1990) 7 NWLR (Pt.164) 526.

In a nutshell, the applicant seeks the setting aside of the Ruling of this Court of the 29th February, 2016 on the ground that it was given without jurisdiction. The contrary view of the 1st respondent is that what the applicant wants done through another way is a review of the Ruling of the Supreme Court regularly made on the said date.

I set down the said Ruling for a clearer view and I quote: –

“IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA

ON MONDAY THE 29TH DAY OF FEBRUARY, 2016

BEFORE THEIR LORDSHIP

WALTER SAMUEL NKANU ONNOGHEN

CLARA BATA OGUNBIYI

KUMAI BAYANG AKA’AHS

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN

CHIMA CENTUS NWEZE

SC.642/2013

BETWEEN:

REVEREND SEGUN ADEMOLA ALLI

AND

N.U.C. & ANOR.

RULING

(DELIVERED BY WALTER SAMUEL NKANU ONNOGHEN, JSC)

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The motion filed on 26/3/15 prays for the dismissal of the appeal on the ground that same has been overtaken by events and consequently academic.

It is supported by an affidavit of 16 paragraphs on which the appellant relies as well as Exhibit AGA1 which is the accreditation of the 2nd respondent in respect of its law programme which was the focus of the reliefs claimed in the action. Learned counsel for appellant has argued that Exhibit AGA1 does not affect the reliefs claimed in the action and as such the appeal still has life and that the said exhibit came into being during the pendency of the appeal making same an act of self help which should not be encouraged.

We have listened to counsel for the parties and gone through the record of proceedings including the reliefs claimed by appellant at page 5 of the record, particularly reliefs 1-5 thereof and have come to the conclusion that Exhibit AGA1 has knocked the bottom off the claims of appellant particularly since it is a concession of the judgment of the Court of Appeal on the matter. A party against whom a decision is given may either agree or disagree with it. Where he agrees with the judgment he takes the necessary

steps to ensure its enforcement by him. In the instance case, Exhibit AGA1 is a clear case of a compromise by the 2nd respondent in respect of the judgment of the lower Court and validly made.

In the circumstances, Exhibit AGA1 cannot be said to be an act of self-help but an act enforcing the judgment thereby leaving appellant with an empty shell – nothing to hand unto.

In conclusion, we find merit in the application which is hereby granted as prayed.

It is ordered that appeal NO. SC/642/2013 be and is hereby dismissed for having been overtaken by events as evidenced in Exhibit AGA1.

Parties to bear their costs.

(SIGNED)

WALTER SAMUEL NKANU ONNOGHEN JUSTICE, SUPREME COURT.”

It has now become trite in law that this Court can relist a matter upon the fulfilment of certain conditions and where those conditions or obstacles are absent the application such as the present would fail. The guide for this kind of presentation as we are faced with are stated in the case of N.N.S.C. v. E.S.V. (1990) 7 NWLR (pt.164) 526 which are:-

(a) Whether the applicant had good reasons for being absent at the hearing

(b) Whether he has shown that there was good reason for his delay in bringing the application

(c) Whether the respondent will not be prejudiced or embarrassed if the order for the rehearing was made

(d) Whether the applicant’s case was manifestly unsupportable.

Taking those conditions above stated in view and correlating them with the Ruling of this Court in SC/642/2013 which applicant is asking us to set aside, I must say that the circumstances as I can glean from the supporting affidavits and the countering one is that as little said the better so as not to go into reviewing or sitting on appeal over a decision of this Court which jurisdiction does not exist either statutorily or constitutionally endowed. This Court knowing the imperfections of human beings in relation to certain presentations upon which an exception to that general rule may be made had this to say in the case of Famu & Ors v. Kassim & Ors (2013) 7 NWLR (pt.1352) 166, “except in the limited sense granted byOrder 8 Rule 16 of the Supreme Court Rules, the Supreme Court has no power to sit on appeal over its decisions. In this case, the Supreme Court having dismissed the

applicant’s appeal upon the application of the respondent, it became functus officio. Therefore, whether the decision of the Supreme Court was right or wrong, however defective ex-facie the said order or wrongly decided, it could not competently Re-enter nor rehear the appeal.”

The dictum above may have prophetically had the present application in mind. In this motion before the Court, the applicant digging into why that Ruling was delivered without jurisdiction especially stating that learned counsel for the 1st respondent, Barrister Peter Erivwode having deposed to the affidavit in the motion that propelled that Ruling was incompetent to do as he cannot be counsel and witness at the same time. This posture in my humble view smacking of an arrogant intellectual display which would be best suited in a university setting but certainly not in an adjudicatory setting for no law has provided the jurisdiction for the Court to enter into such academic rigmarole or discourse when its time has been programmed for deciding the disputes between parties before it. Also to be said is that this application is nothing else but an invitation of the

Court to sit on appeal over its own decision and no reason except the academic maneuvers in the supporting affidavits have been placed before this Court to go against the norm and set aside its own decision. See Omoju v. FRN (2008) 7 NWLR (P1085) 38.

The situation on ground is all the more irritating where the Law Faculty of the 2nd respondent had complied with the judgment of the Court of Appeal by closing down the illegal Law faculty and going ahead to take steps necessary which led the fresh approval or accreditation given to it by the 1st respondent on the 3rd December, 2014, a fact which this Court took into consideration in delivering the Ruling dismissing the appeal and stating that by that accreditation the appeal had been overtaken by events. Clearly as at the time of the Ruling in issue and now there was no live issue and what is now called for is a descending into academic issues and this Court does not do such. See Awojugbagbe Light Industries Ltd v. Chinukwe (1995) 4 NWLR (Pt.390) 379 at 410.

In fact what I see before me is an abuse of Court process which has brought up a regular common feature which is the improper use of the judicial process by the applicant.

Clearly the applicant has no wish for the end of the litigation over an issue that had long been laid to rest and it is indeed irritating, annoying and not allowable which this Court will not permit. See Nyah v. Noah (2007) 4 NWLR (Pt.1024) 320 at 339-340 CA; Arubo v. Aiyeleru (1993) 3 NWLR (pt.280) 126 at 142 & 146; Saraki v. Kotoye (1992) 9 NWLR (pt. 264) 156 at 188-189; Attorney General Anambra State v. UBA (2005) All FWLR (pt. 277).

From the foregoing, this application has no leg on which to stand as it lacks merit and leaving me no option than to dismiss it. Application of 31st March 2016 is hereby dismissed.

I award the sum of One Million Naira (N1,000,000.00) against the Appellant to be paid to the 1st Respondent.

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SC.642/2013(R)