Senator I.G. Abana V. Chief Ben Obi & Ors. (2004)

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ADEKEYE, J.C.A.

By an amended motion on notice filed on the 27th of September, 2004 the appellant, Senator I.G. Abana prayed this Honourable Court for an order setting aside its judgment delivered on the 4th of May, 2004 Coram: Isa Ayo Salami, Saka Adeyemi Ibiyeye, Victor A.O. Omage, M. Datijjo Muhammed and Aminu Sanusi, J.J.C.A. for being a nullity. This application was brought pursuant to Order 1 Rule 19 Court of Appeal Rules 2002, sections 11 and 13 Court of Appeal Act, and sections 6(6)(a) and (b) and 36 ofthe 1999 Constitution of the Federal Republic of Nigeria and the inherent jurisdiction of this court. The grounds for the application as set out in the motion are as follows:

(1) The judgment sought to be set aside is a nullity.

(2) The procedure and proceedings adopted by the Honourable Court on the 6th day of April, 2004 when the court purported to hear the appeal clearly denied the judgment of the 4th of May, 2004 based thereon the character of a legitimate adjudication.

(3) The proceedings of the 6th day of April, 2004 and the judgment of 4th May, 2004 based thereon grossly violate section 36 of the Constitution of the Federal Republic of Nigeria 1999.

(4) The appeal for which judgment was purportedly delivered on the 4th day of May, 2004 had been fully heard by another panel of Justices Coram – O. Opene, B. Akaahs and D. Adeniji, J.J.C.A. and had been reserved for judgment.

(5) The panel of Justices who purportedly delivered the judgment of the 4th of May, 2004 did not hear the matter.

(6) The judgment invariably violates natural justice.

At the hearing of the application, the applicant relied on a 31 paragraph affidavit in support dated 27th of September, 2004 to which are attached the proceedings of the 17th of February, 2004 as exhibit A1 and the proceedings of the 26th of February, 2004 as exhibit A2 a further-affidavit dated 4th October, 2004, annexing the judgment sought to be set aside as exhibit A3, and finally the appellant/applicant’s written address filed on 4/10/2004 in support of this amended motion on notice to set aside judgment in CA/E/EPT/22/2003 delivered on 4/5/2004.

During the hearing of the application, the applicant compressed the six grounds relied upon to set aside into two issues for determination in his written brief as follows:

(1) Whether the judgment sought to be set aside is a nullity considering the procedures and proceedings adopted by the Honourable Court on the 6th day of April, 2004 when the Honourable Court purported to hear the appeal in breach of natural justice thereby denying the judgment of 4th May, 2004 based thereon the character of a legitimate adjudication and contrary to section 36 of the Constitution of the Federal Republic of Nigeria 1999?

(2) Whether the appeal for which judgment was purportedly delivered on the 4th day of May, 2004 having been fully heard by another panel of Justices Coram – O. Opene, B. Akaahs and D. Adeniji, J.J.C.A. and reserved for judgment, renders the judgment purportedly delivered on 4th May, 2004 by a panel which did not hear the matter a nullity?

The appellant’s counsel, Mr. Wole Adebayo in his argument and submission gave five appropriate instances which are well settled in law under which a court can set aside its judgment relying on the case of Igwe v. Kalu (2002) 14 NWLR (Pt. 787) 435 at 453-454 paragraphs F-B, 454, para. C,455, para. B,464, paras. C-E as follows:

(a) When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties, such a judgment can be impeached or set aside by means of an action which may be brought without leave.