Prince Chijioke B. Nnaji V. Prince Goddy Agbo & Anor (2005)

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GALADIMA, J.C.A.

This is a motion brought pursuant to section 16 of the Court of Appeal Act, Order 3 rule 3(1) of the Court of Appeal Rules, 2002 and under the inherent jurisdiction of this court on behalf of the 1st respondent/applicant, for an order setting aside the judgment of this court dated February 16, 2004 delivered by Opene, Akaahs and Adeniji, J.C.A., and an order re-listing for hearing appeal No. CA/E/EPT/12/03) Prince Chijioke Nnaji v. Prince Goddy Agbo and Ors. and appeal No. CA/E/EPT/12A/03, there being no valid judgment.

The grounds of the application are as follows:

1. The Court of Appeal is without jurisdiction to reopen and decide an appeal already decided on October 27, 2003 in the ruling of Honourable Justice M. Mohammed, J.C.A. and also reaffirmed in the ruling of Bon. Justice Ogunbiyi, J.C.A on January 27, 2004.
2. The Court of Appeal is functus officio as it relates to the appeal by Independent National Electoral Commission and 455 Ors. and lacked the jurisdiction to reopen, review, revisit the appeal for any purpose whatsoever and/or deliver the judgment dated February 2, 2004.

The judgment of the Court of Appeal dated February 26, 2004 is a nullity being a judgment made without jurisdiction.

Applicant also gave further notice that at the hearing of the application, he would rely on the records of appeal in appeal No. CA/E/EPT/12/03; appeal No. CA/E/EPT/12B/03 and CA/E/EPT/12A/03.

In support of the application is 11 paragraph affidavit deposed to by Ebele, a legal practitioner in the firm of the applicant’s counsel.

Annexed thereto are exhibits CN1 – CN6. Exhibit CN6 is the said judgment sought to be nullified. The three grounds on which the application is predicated are set out as follows:

1. That the Court of Appeal is without jurisdiction to reopen and decide on appeal already decided on October 27, 2003 in the ruling of Honourable Justice Mohammed, JCA and also reaffirmed in the ruling of Honourable Justice Ogunbiyi, JCA January 27, 2004.
2. That the Court of Appeal is functus officio as it relates to the appeal by Independent National Electoral Commission and 455 Ors., and lacked the jurisdiction to reopen, review, revisit the appeal for any purpose whatsoever and/or deliver the judgment dated February 26, 2004.
3. That the judgment of the Court of Appeal dated February 26, 2004 is a nullity being a judgment made without jurisdiction.

Following the order of this court, respective counsel filed and exchanged written addresses. Applicant filed his on 4/10/2004 whereas the appellant did not file any counter-affidavit but respondent in opposition to the application filed his written address on 5/10/2004. So also did the 2nd – 445th respondent, in opposing the application without filing counter-affidavit but filed their written address on 8/10/2004.

On 4/11/2004, we took arguments of counsel who adopted their respective addresses without detailed elaboration. Learned Counsel for the applicant Mike Okoye, Esq. referred to the applicant’s motion filed on 5/4/2004. He urged us to allow the application relying on the three grounds already reproduced above and a number of decided authorities of the Supreme Court and this court. He urged this court to set aside the judgment of Honourable Justices Opene, Akaahs and Adeniji, JJ.C.A., delivered on 26/2/2004 and to make an order re-listing for hearing of appeal No. CA/E/EPT/12/03: Prince Chijioke Nnaji v. Prince Goddy Agbo & Ors., and appeal No. CA/E/EPT/12A/03 – Prince Goddy Agbo v. Chijioke & Ors., there being no valid judgment.

The appellant/respondent in opposition relying on the Supreme Court decision in Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 435; Olojimfemi v. Osho (2000) 2 NWLR (Pt. 643) P. 143 and the decision of this court in Ukachukwu v. Uba (2004) 10 NWLR (Pt.881) P. 294 at 308-309. It is urged that this application be dismissed because the applicant has failed to show that his application comes within the exceptional circumstances contemplated in Igwe v. Kalu (supra) and Ukachukwu. v. Uba (supra).

On their part the 2nd – 245th respondents submitted that there was not such fundamental defect in the judgment of this court delivered on 26/2/2004 to warrant its being set aside. Their learned counsel Peter N. Eze, Esq. relying on the Supreme Court decisions in Igwe v. Kalu (supra) and Ukachukwu v. Uba (supra) and Ilonze v. Igboka – CA/E/EPT/9/2004 (Unreported) a decision of this court delivered on 30/9/2004, urged us to dismiss the application as a gross abuse of court process.

Briefly, facts relevant to this application as set out in the applicant’s affidavit and the documents attached as exhibits, in support of this application thereto are that on 21/7/2003, the National Assembly Election Tribunal sitting here in Enugu delivered judgment in petition No. NA/EPT/EN/2/2003: Nnaji v. Agbo & 445 Ors. Thereafter three separate appeals were filed against the said judgment as follows: CA/E/EPT/12/2003 filed by the applicant herein who was the petitioner before the Tribunal; CA/E/EPT/12A/2003 filed by the appellant herein who was the 1st respondent before the Tribunal; and CA/E/EPT/12B/2003 filed by the 2nd – 445th respondents herein who were the respondents before the Tribunal.

On 27/10/2003, on the application of the applicant here, the Court of Appeal (Coram: Mohammed, Fabiyi and Dongban-Mensem, J.J.C.A) dismissed appeal No. CA/E/EPT/12B/2003 on the ground that no brief had been filed by the appellants in that suit. Application of the 2nd – 445th respondent to set aside this order of dismissal was a final order and the court could not set it aside because the court was funetus officio.

However, On 9/2/2004 the two remaining appeals Nos. CA/E/EPT/12/2003 and CA/E/EPT/12A/2003, came up for hearing before a new panel consisting of Opene, Akaahs and Adeniji, J.J.C.A., and were consolidated. In the lead judgment delivered on 26/2/2004 Opene, JCA, dismissed appeal No. CA/E/EPT/12/2003 and allowed appeal Nos. CA/E/EPT/12A/2003 and CA/E/EPT/12B/2003.