Omoleke Ogunsanya V. Alhaji Akande (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

In a motion dated 22nd June, 2009 and filed the same day the applicant prayed for the following relief:

‘AN ORDER setting aside the ruling of this Honourable court delivered on 15th June, 2009 in Appeal No: CA/I/217/08.

And for such further order(s) as this Honourable court may deem fit to make in the circumstance.’

The application was supported by a twenty two (22) paragraph; affidavit deposed by Taiwo Lukman a legal practitioner in the chambers of Lana, Aladeniyi & Co, solicitors to the Appellant/Applicant. Attached to the supporting affidavit is Exhibit ‘A’, a Hearing Notice dated 11th May, 2009, issued in respect of CA/I/217/0B fixing the case for Monday 15th day of June, 2009. Also relied upon is a further affidavit of ten (10) paragraphs. Attached to the further affidavit are Exhibits B and B1, a motion on Notice dated 7/5/09 filed the same day with its supporting affidavit and a receipt for filing, respectively, referred to in paragraph 7 of the further affidavit.

While arguing the application, the learned counsel to the Appellant/Applicant F. B. Aladeniyi (Mrs.) submitted that the application was brought pursuant to Order 19 Rules (1) & (2), even though this was not reflected on the motion paper, but moved the court under the inherent jurisdiction of this court to set aside the Ruling of this court as reflected in the relief sought, the appeal having been dismissed by this court under Order 17 Rule 10 of the Rules of this court, 2007 on 15/6/09.

The learned applicant’s counsel blamed the dismissal on the different numbers given to the appeal. Reference was made to Exhibit ‘A’ and paragraph 19 of the affidavit and paragraphs 7 and 8 of the further affidavit. It was argued that the court was misled by the Registry that gave the main appeal and the motion different numbers which caused the dismissal. We were urged to exercise our discretion and set aside the Ruling dismissing the appeal and restore the appeal, as it was not a judgment given on the merits. Reliance was placed on the cases of UKACHUKWU V. UBA (2006) ALL FWLR PT.300 P.1736 AT 1750-1751. PARAGRAPHS F-E; OTUOKE V. PHILIPS (2000) FWLR PT.20, P.762 AT 765. PARAGRAPHS F-G.

Further, that the court should not suffer a litigant for the mistake of the Registry, the case of DUKE V. AKPABUYO L.G. (2006) ALL FWLR PT.294 P.559 AT 576 PARAGRAPH B was cited and relied upon. We were urged to restore the appeal.

Even though the learned counsel O. Tiwo – Adefokun (Mrs.) on behalf of the Respondent filed a counter affidavit of eleven (11) paragraphs, she objected to the application on two grounds. Firstly; it was argued that this appeal was dismissed under Order 17 Rule 10 of the Court of Appeal Rules, 2007, that is, failure to file brief of argument. Further, that at the time the appeal was dismissed there was no brief before the court and no application for extension of time. It was submitted that this court cannot reverse the order of dismissal; the following cases were cited and relied upon. KRAUS THOMPSON V. NIPSS (2004) ALL FWLR (PT.218) D.797 AT 808, PARAGRAPH D and FIRST BANK OF NIGERIA V. CSA INDUSTRIES (2997) ALL FWLR PT.352, P.17-19 AT P.1745 PARAGRAPH A.

Secondly, that the applicant filed a Notice of Appeal against the Ruling of 15/6/09 on 16/6/09, it is the same Ruling that this application seeks to set aside. Reference was made to the motion dated 16/6/09 filed on the same day. It was argued that the motion shows that there is an appeal against the Ruling of 15/6/09, the said motion is for stay of execution and injunction pending the determination of the Appeal lodged at the supreme court which learned counsel to the Respondent submitted is an abuse of court process, which ought not to be tolerated and referred to the case of ANTHONY VILLAGE COMMUNITY BANK V. OBIKOYA (2000) FWLR PT.25 P.1588 AT P.1590 PARAGRAPHS D-G, also OKOREAFFIA VS. AGWU (2008) ALL FWLR PT.445 P.1601 AT 1623, A-B. We were urged to refuse the application and strike out the motion to set aside the Ruling of this court, reference was made to Order 19 Rule 5 and it was argued that this rule does not give the court the power as urged by the appellant.

In reply on points of law, Mrs. Aladeniyi urged us to do substantial justice and that over reliance on technicality or mistake should not take the place of seeing the enthronement of justice, reliance was placed on the case of DUKE V. AKPABUYO (Supra) P.570 PARAGRAPHS G-H. It was finally argued that this court would only become functus officio when the Ruling complained of has been drawn up or enrolled. Referred to be the case of UKACHUKWU V. UBA (Supra) P.1749, PARAGRAPHS D-H, we were urged to allow the application.

I will consider first the objection to the application before the merit of same if need be. The first ground of objection is that the appeal having been dismissed under Order 17 Rule 10 of the Rules of this court, 2007 for failure to file the Appellant/Applicant’s brief of argument, this court cannot reverse the order of dismissal by setting aside the order of this court made on 15/6/09. No doubt, the order/decision of 15/6/09 was a definite and final decision, what the applicant now seeks is for this court to sit on appeal over its decision of 15/6/09 dismissing the appeal for want of diligent prosecution, this we cannot do. The law is, once an appeal is dismissed under Order 17 Rule 10 of the Court of Appeal Rules, 2007, this court does not have the power to revive the appeal by re-entering or relisting same, see KRAUS THOMPSON ORG. V. NIPSS (Supra) and BABAYAGI V. ALHAJI BIDA (1998) 2 NWLR (PT.538) 367. In the present case, the situation is even worse in that this court had become functus officio to entertain the present application to consider the sole prayer to set aside our earlier decision.

Our Rules of court does not permit this. Order 18, Rule 4 of the Court of Appeal Rules, 2007, is clear, it provides:- Order 18 Rule 4:

‘4. The court shall not review any judgment once given and delivered by it, save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the court decided nor shall the operative substantive part of it be varied and a different form substituted.’