Kunle Yinka Ademola V. Attorney-general Of The Federation & Anor (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Federal High Court delivered by HON. JUSTICE D.D. ABUTU (as he then was) on the 28th September, 2001 wherein the lower Court accepted an invitation to set aside its judgment delivered on 26th September, 2000. The appellant, dissatisfied with the ruling, filed a 1st Amended Notice of Appeal setting out 3 grounds of appeal.

The brief facts of this appeal are that the appellant was claimant at the Lower Court and judgment was entered in his favour in the absence of the Respondents who later applied asking the court to set aside its judgment given in default of defence and appearance. The court set aside the said judgment, a decision which aggrieved the appellant thus this appeal.

The appellant filed his brief of argument dated 28/1/2013 on the same day but deemed on the 24/2/15 which was relied upon and adopted at the hearing of this appeal.

The Respondents filed a joint Respondents’ brief dated 19/9/2014 deemed on the 24/2/15, relied upon and adopted at the hearing.

The appellant formulated 2 issues for determination as follows:

1. Whether a trial court has jurisdiction to set aside its own judgment given on the merits of the case on the ground that a party seek to raise a defence, after trial that the original suit was statute barred?
2. Whether this Honourable Court should reverse the ruling of learned trial Judge of 26th September 2001 and restore the judgment made on the merits of the case.

The Respondents on their part also distilled 2 issues for determination as follows:

1. Whether the Federal High Court has jurisdiction to hear and make declaration in a matter relating as it did in its judgment sought to be restored by the appellant.
2. Whether judgment delivered without the filing of a defence and non appearance of a party is a judgment on the merit that cannot be set aside by the trial court.

Proferring arguments on the first issue, the appellant contended that the Federal High Court lacks jurisdiction to set aside its own judgment given on the merit. Appellant asked 3 questions namely:

(a) Can a trial court set aside its own judgment delivered on the merit of the case?

(b) In what circumstances, if any, can a Trial Court set aside its own judgment.

(c) Can a trial court set aside its own judgment on the ground that a Respondent alleges that the original suit was statute barred?

On functus officio principle, the appellant submitted that a court cannot revisit its judgment except to make ancillary orders such as stay of execution or instalmental payment, he referred to KADUNA TEXTILES LTD v OBI (1999) 10 NWLR (Pt.621) 138; OYEFOLU & ANOR v. DUROSINMI OYEFOLU & ORS (2001) 7 SCNJ 108; 2001 16 NWLR (Pt.738) 1.

Appellant contended that upon service on the Respondents, they chose not to file a defence and the appellant called evidence and closed its case upon which judgment was entered before they applied to set aside the judgment. That the ground upon which the Lower Court set aside its judgment was that the suit was statute barred. This the appellant argued was beyond the Lower Court because it lacked jurisdiction to set aside a decision on the merit.

Appellant went further to state exceptions to the rule of functus officio which he named as: