Christian Abba V. Hon. Augustine Adikpe & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

Z. A. BULKACHUWA, J.C.A. (Delivering the Leading Judgment)

This is an application filed on the 24th June, 2009 brought pursuant to Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria and Order 7 Rule 1 of the Court of Appeal Rules, 2007 wherein the applicant prays for:

‘An order of this Court that a fresh panel of this Honourable Court sets aside ex-debito justiciae its own judgment in appeals Nos.CA/J/EP/HR/106/08; and CA/J/EP/HR/106A/08, Augustine Adikpe Vs. Christian Abba and 13 Ors., consolidated and delivered by this Court on the 31st March, 2009 for being a nullity’.

The grounds upon which the application is predicted upon are;

(a) The said judgment was delivered in breach of Section 36(1)of the 1999 Constitution of the Federal Republic of Nigeria.

(b) The court was misled into giving its judgment the way it did.

(c) The procedure adopted by this Honourable Court in the judgment delivered on the 31st March, 2009 deprived the said decision the character of a legitimate adjudication.

The respondents to the application in particular 1st and 2nd respondents filed counter affidavits in reply to the affidavit in support of the application, they at the same time filed notices of preliminary objection to the hearing of the application.

The respective preliminary objections were argued and replied to at the last adjourned date. I will in the circumstances determine the 2 preliminary objections first before considering the applications if the decision so warrants.

The 1st respondent’s objection filed on the 20/7/2009 is to the effect that this court lacks the jurisdiction to entertain the application that seeks the court to review and set aside its judgment in consolidated appeals Nos. CA/J/EP/HR/106/2008 and CA/J/EP/HR/106A/2008 Augustine A. Adikpe Vs. Christian Abba & Others and urges the court for an order striking out the motion for lack of jurisdiction.

The grounds of the said objection being that;

(1) That this Honourable court heard arguments on the merits front all parties on the appeals and gave a final judgment on the appeals on 31/3/2009.

(2) That once an issue or issues have been raised and determined by the court between the litigating parties, the court becomes functus officio to either direct or allow parties to re-open the same for re-litigation.

The said preliminary objection is supported by an affidavit of 3 Paragraphs and a written address; this was relied upon and adopted at the hearing of the preliminary objection. In the written address, the 1st respondent raised this issue.