First Bank Of Nigeria Plc. V. T. S. A. Industries Limited (2012)

LAWGLOBAL HUB Lead Judgment Report

OLU ARIWOOLA, J.S.C

This is a ruling on the application of the Respondent. The applicant had sought the following:

“An order setting aside, the judgment given by this Honourable court on the 9th July, 2010 on the ground that same was given under the mistaken and erroneous assumption that there was an appeal before this Honourable court against the Ruling of the court below given on the 26th September, 2005 when in fact there was no such appeal.”

The applicant gave the following as the grounds for seeking the said order.

“1. It is settled law that it is only a valid Notice of Appeal before the Supreme Court against the judgment or order of the Court of Appeal that activates the appellate jurisdiction of the Supreme Court to sit on a judgment or Order of the Court of Appeal.

2. That an order of the Supreme Court made without its jurisdiction being properly and antecedently activated is a nullity.”

In support of the said application is an affidavit of 8 paragraphs deposed to by one Felix Orogun, the Managing Director of the applicant.

Attached to the application are the following documents marked as Exhibits.

1. The Judgment of the Supreme Court delivered on July, 9th 2010 in SC/316/2006 – Exhibit TSA1.
2. Appellant’s Further Amended Notice of Appeal dated and filed on October 20th 2008 in SC/316/2006 – Exhibit TSA2.
3. Drawn-up Order and Record of Proceedings of the Court of Appeal dated September 26th, 2005 dismissing Appellant’s substantive appeal No.CA/L/200/2001 under Order 6 Rule 10 of the Court of Appeal Rules, 2002 – Exhibit TSA3.
4. Record of Proceedings, and Drawn-up Order of the Court of Appeal, dated June 14th 2005 and June 16th 2005 respectively in Appeal No.CA/L/200/2001 – Exhibit TSA4.
5. Ruling of the Court of Appeal, delivered on December, 11th 2006 in CA/L/200/2001 (the Ruling appealed against in SC/316/2006 Exhibit TSA5.

When moving the application, Chief Ladi Rotimi-Williams, SAN predicated same on Sections 233 (1), 18(2) of the 1999 Constitution of the Federal Republic of Nigeria and the inherent jurisdiction of this Honourable Court. He urged the court to grant the application.

In opposing the application, the Respondent/Appellant filed a counter affidavit of 6 paragraphs to which one Tomi Olagunju deposed as a Solicitor in the Law firm of Citipoint (Legal Practitioners), Counsel to the Appellant. Attached to the said counter affidavit are various documents purportedly marked as Exhibits TOA, TOB, TOC, TOD, TOE and TOF respectively

The Respondent later filed a further counter affidavit on 6/3/2012 and attached other documents stated in the counter affidavit to be marked as Exhibits TOG, TOH, TOI, TOJ and TOK respectively.

In his response to the application, Mr. Olumide-Fusika referred to both counter affidavits and contended that the applicant had brought two similar applications previously filed on 15/7/2010 and 5/5/2011 respectively. While the first application was struck out with costs of N30, 000 against the applicant but in favour of the Respondent, the second application was withdrawn by the applicant and struck out, again with costs of N30, 000.00 in favour of the Respondent. Learned counsel contended further, that the instant application is the third, seeking the same relief. He submitted that the applicant’s attitude is an abuse of court process and should not be allowed by the court.

Learned counsel to the Respondent further argued that the same relief being sought in the instant application and the two previous ones had earlier been vigorously argued by way of preliminary objection in the main appeal and was duly considered by the court in its judgment. The said preliminary objection was then resolved by this court against the applicant. He referred to the decision of this court reported in (2010) 15 NWLR (pt. 1216) 247 in particular, page 301 paragraph (e) to page 302 paragraph (h). He submitted that this application constitutes an abuse of court process.

On the conditions when this court can set aside its own decision, he referred to Order 8 Rule 16 of this Court’s Rules, 2009. He submitted that the court cannot review its decision except to correct clerical mistakes or some errors or accidental slip or omissions or to vary the judgment or order to give its meaning or intention of a judgment.

He finally submitted that the instant application is wholly abusive of the process of this court hence should be dismissed.