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

LawGlobal-Hub Lead Judgment Report

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.