Engr. Solomon Omorodion Uwaifo & ORS v. Governor of Lagos State & ORS (2007)

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ADZIRA GANA MSHELIA J.C.A

This is an appeal against the Ruling of the Lagos State High Court delivered by Phillips J. on 17th October, 2003.

The Plaintiff now appellants instituted an action against the defendants now respondents at the court below by filing simultaneously, their writ of summon, statement of claim, a motion for interlocutory injunction supported with an affidavit of urgency, on 8th July, 2002. The motion was entertained by Adebiyi J. on 12th August, 2002 and delivered a considered ruling in favour of the prayer of the appellants, that is to say granting the prayer for interlocutory injunction on 14th August, 2002. The third defendant now third Respondent filed an appeal to this court against the ruling, on 19th August, 2002. At the same time, third Respondent also filed an application praying for a stay of execution or suspension of the ruling pending the determination of his appeal. The motion was assigned to Phillips J. The Appellants took out contempt proceedings against the third respondent. The 1st, 2nd, 4th and 5th defendants/respondents filed an application praying the court to set aside or discharge the order of interlocutory injunction granted against the defendants by the court below on the 16th day of August, 2002 on grounds of suppression and misrepresentation of material facts. The learned trial Judge heard the application and in a considered ruling delivered on 17th October, 2003 vacated the order of interlocutory Injunction granted by Adebiyi J. See pages 197 to 203 of the record. The learned trial Judge had this to say:-

“I accordingly grant the application of the 1st, 2nd, 4th and 5th Defendants/Applicants and the order of interlocutory injunction made by this court on 16/8/02 is hereby vacated. The Defendants are hereby ordered to file and serve their respective statement of Defence within 14 days from today, the Plaintiffs shall file their replies thereto within 7 days of service. I make no order as to costs and will now hear counsel as to a suitable date for mention.”

Dissatisfied with the said ruling appellants lodged an appeal to this court by filing their notice and grounds of appeal on 20/10/03. The Notice of Appeal contained only one ground of appeal.

In line with the rules of this court at the time of filing the appeal parties exchanged briefs of argument.

When the appeal came up for hearing both appellants and respondents counsel adopted their respective briefs of argument. No brief of argument was filed on behalf of 3rd Respondent though one Miss Funmi Adeleye esq announced appearance for the 3rd respondent.

The appellants in their brief dated and filed on 12/7/04 formulated one issue from the lone ground of appeal. The main issue for determination in this appeal is whether Phillips, J. was competent to set aside the order of a Judge of co-ordinate jurisdiction.

The 1st, 2nd, 4th and 5th respondents in their brief filed on 21/5/07 which same was deemed filed and served also formulated one issue for determination in this appeal. The issue is not different from that formulated by appellants. The issue is whether the Honourable Justice Phillips was competent to set aside the order of a court of Co-ordinate jurisdiction.

Learned counsel for the appellants Yonwuren esq made a lengthy submission on the sole issue formulated for determination in this appeal. I would briefly summarize same. Learned counsel contended that the new evidence used by the learned trial Judge as ground for setting aside the ruling of Adebiyi J, amounted to sitting on appeal over a decision of a judge of co-ordinate jurisdiction and that is not our law. The third respondent accepted that the court below through the order of Adebiyi J. was functus officio as regards the application for the interlocutory injunction and lodged an appeal to this court on 19th September, 2002 and followed same with an application praying the court below to stay the order of Adebiyi J. pending the determination of his appeal.

It is submitted further that the learned trial Judge was being asked to review the earlier decision of her learned brother of the same jurisdiction. Reliance was placed on the case of Ejakpomehwe Akoprue & anor Vs Isieheri Okei & 2 Ors (1993) 12 SC 137.

It was also contended that the application which Phillips J. considered was an abuse of process of the court. He relied on the case of Ashley Agwasim & Anor V. David Ojichie & anor (2004) 4 SC (pt1). 160. In that case a dissatisfied defendant had appealed the decision of a lower court (the Court of Appeal) to arrest the relief contained in his appeal. The Supreme Court was emphatic that “clearly that was an abuse of judicial process. It is trite that the abuse of judicial process is the improper use of the judicial process by a party in litigation. It may occur in various ways …”. Learned counsel contended that the proper course available to the learned trial Judge was to have struck out the state respondents applications to set aside the order of Adebiyi J. It was argued further that if this submission is upheld, then the submission by 1st, 2nd, 4th and 5th respondents that the court below could not restrain an already completed act would not have availed them irrespective of the authority of Ayorinde Vs A.G. Oyo State (1996) 3 NWLR (Pt 434). See also Governor of Lagos State V Ojukwu (1986) 1 NWLR (Pt 18)621.

Learned counsel concluded his submission by urging the court to hold that Phillips J. was not competent to exercise appellate jurisdiction over a court of Coordinate jurisdiction by setting aside the order of Adebiyi J., consequently, the appeal be allowed.

In reply Lawal Pedro, the Director Civil Litigation Ministry of Justice Lagos State conceded that as a general rule once a court delivered a ruling or judgment on a matter it becomes functus officio, and the court or any court of Co-ordinate jurisdiction lacks jurisdiction to set aside or review the earlier decision. However, there are exceptions to this general rule. One of such exception is when the decision is regarded as a nullity or that the court had acted without jurisdiction, the same court or a court of coordinate jurisdiction under such circumstances has an inherent power and jurisdiction to set aside the decision. See the following cases: Sanusi V. Ayoola (1992) 9 NWLR (Pt 265) 275; Okafor Vs A.G. Anambra (1991) 6 NWLR (Pt 200) 609 and Ibwa V. Kenedy Trans Nig. Ltd (1993) 7 NWLR (Pt 304) 238 at 250 – 251. Learned counsel contended that even the Supreme Court has held that it has inherent powers to set aside its own judgment in any of the following circumstances: