➥ CASE SUMMARY OF:
Ganiat Yetunde Elias & Anor. v Ecobank Nigeria Plc (2016) – CA
by “PipAr” B.C. Chima
Court of Appeal – CA/L/873/2013
➥ JUDGEMENT DELIVERED ON:
07 April 2016
➥ AREA(S) OF LAW
Deleting part of a judgement;
Counsel who appeared listed in judgement.
➥ NOTABLE DICTA
⦿ AFFIDAVIT WHICH CONTAINS ARGUMENT WILL BE STRUCK OUT
In this case, the first part of the said paragraph 7c [of Applicants’ affidavit], reads as follows – “The condemnation of the Appellant’s Counsel as unprofessional, disrespectful, dishonest, discourteous, without hearing him is contrary to Section 36 of the 1999 Constitution (as amended) and thus null and void. See the Supreme Court case of BELLO V. INEC & ANOR. (2010) LPELR-767 (SC), page 78, paras. D-F, the Court held that ‘A court has inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the Judgment or Order given becomes null and void, thus liable to be set aside’.
Is this paragraph 7c in the Applicants’ Affidavit in the form of evidence? Obviously not; it is a legal argument or conclusion, which offends against Section 115 (2) of the Evidence Act 201, and it is, therefore, struck out. — A.A. Augie, JCA.
⦿ ONCE A COURT DELIVERS JUDGEMENT IT IS FUNCTUS OFFICIO; EXCEPTIONS THAT EXISTS
It is settled law that once a Court has delivered its decision on a matter, it becomes functus officio with regard to that matter. What this means is that a Court cannot sit as an appellate Court over its decision; once it has decided a matter, it ceases to be seized of it, and it cannot re-open it for any purpose whatsoever – see Ogboru V. Ibori (2005) 13 NWLR (Pt. 942) 319 Sun Insurance V. LMBS Ltd. (2005) 12 NWLR (Pt 940) 608, Ukachukwu V. Uba (2005) 18 NWLR (Pt 956) 1, Ubeng V. Usua (2006) 12 NWLR (Pt 994) 244 and Onyekweli V. INEC (2009) 6 NWLR (Pt 1136) 13. But the law also says that Courts of record have the inherent jurisdiction to set aside their Judgments/decision/order, in appropriate cases. When a. The Judgment is obtained by fraud or deceit either in the Court or of one or more of the Parties; b The Judgment is a nullity; c. It is obvious that the Court was misled into giving Judgment under a mistaken belief that the parties consented to it; d. The Judgment was given in the absence of jurisdiction; e. The proceedings adopted was such as to deprive the decision or Judgment of the character of a legitimate adjudication; or f. Where there is fundamental irregularity. See Alao V. ACB (2000) 9 NWLR (Pt 672) 264, Tomtec (Nig.) Ltd. V. FHA. (2009) 16 NWLR (Pt 1173) 358 SC, and Jev V. lyortom (supra). — A.A. Augie, JCA.
⦿ EACH CASE MUST BE DETERMINED ON ITS MERIT
As the Respondent rightly submitted, each case must be determined upon its own peculiar circumstances as no two cases are identical; they may be similar but not identical – see Admin/Exec., of the Estate of Gen. Abacha V. Eke-Spiff & Ors. (supra). — A.A. Augie, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Amina Adamu Augie
⦿ FOR THE APPELLANT
Dr. Charles Mekwunye, Esq.
⦿ FOR THE RESPONDENT
A. N. Okoye, Esq.
➥ CASE HISTORY
The name of counsel, who adopted the Appellants’ Brief of Argument, was not reflected at the end of the Judgment, and in the Judgment itself, Obaseki-Adejumo, JCA, who wrote the lead Judgment, said as follows:
“In his brief of argument, Appellants’counsel was silent on the contemptuous conduct of the Appellants by demolition of the property. It is the duty of counsel to exhibit a high level of decorum, candour and fairness to the Court and to other lawyers. See CHUKWU & ANOR v. INEC & ORS.  LPELR-22221 (SC). This court Per Oredola JCA, in ORISAKWE & SONS L TD. & ANOR v. AFRIBANK PLC.  LPELR-20094 P.51, paras. C-E held: “Counsel appearing before any Court owes a bounden duty to be diligent, treat the Court with respect, honesty and mutual courtesy. Above all, to assist the Court in its avowed bid to dispense justice to all manner of people without fear or favour, ill-will or affection. This much and more should be the focused and targeted goals of both the counsel and the Court”. Counsel blew muted, trumpet on the issue and legal consequence of the demolition, which his clients carried out, during the pendency of the substantive suit. Counsel to the Appellants as an officer of the Court is not oblivious of the fact that sanctity of the Court needs protection by avoiding tampering with subject matters of a pending suit. See Rules 30 & 31 of the Rules of Professional Conduct for Legal Practitioner”.
Dissatisfied with the omission of their counsel’s name in the Judgment, and the above remarks made by Obaseki-Adejumo, JCA, the Applicants/ by this Application dated 5/11/2015, are praying this Court for an Order “reviewing and/or varying and/or annulling part of the Judgment” to show that Mr. E. Nwonu holding brief of Dr. Charles Mekwunye was in Court on 29/9/2015 and adopted the Appellants’ brief of argument; to delete the said remarks made by Obaseki-Adejumo, JCA, against their counsel; and show that Dr. Charles Mekwunye appeared for them on 28/10/2015, when the Judgment was delivered.
➥ ISSUE(S) & RESOLUTION
✓ Jurisdiction to correct slip by addition of Counsel name.
“is not a problem because it is clear from the Record of the Proceedings of this Court on 29/9/2015 that one Mr, E. Nwonu, who was holding the brief of Dr. C. Mekwunye, did argue the Appellants’ Appeal, and this Court, as the Applicants rightly submitted, has inherent power to correct this slip on the part of this Court, which is what it really is – a slip.”
“to vary the Judgment to show that the said Dr. Charles Mekwunye, was in Court when the Judgment was delivered, is out of the question because, as the Respondent said, it is the names of counsel, who argued the Appeal itself, that are listed in the Judgment; not the names of counsel, who merely appear on the date of Judgment. Besides, Section 294 (2) of the 1999 Constitution provides as follows “Each Justice of the Supreme Court or the Court of Appeal shall deliver his opinion in writing or may state in writing that he adopts the name of any other Justice who delivers a written opinion: provided that it shall not be necessary for the Justices who heard a cause or matter to be present when Judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.” So, the Constitution recognizes that delivery of a Judgment is a different process entirely from the writing of the Judgment, wherein the names of counsel, who adopted the briefs of argument at the Appeal, are listed.”
✓ Whether this Court will delete remarks on Counsel made in Judgement?
“Is the said Judgment of this Court a nullity? What made it a nullity? The Applicant’ counsel was not a party to the Suit or Appeal in this Court and it is clear from the said Judgment of this Court that the said remarks directed at the counsel had no bearing whatsoever on the decision itself. It was a comment made in passing by Obaseki-Adejuma, JCA., after the decision of the Court had been taken; it is nothing but an obiter dictum, which is Latin fox “something said in passing, and it is a remark made or an opinion expressed by a Judge, in his decision ‘by the way’ – that is, incidentally or collaterally; not directly on the question before the Court – see Black’s Law Dictionary: 7th Ed., Ratio Decidendi, on the other hand, is Latin for “the reason for deciding”. It is the rationale for a decision or the legal principle upon which the decision in a specific case is founded. In Precedent in English Law, 2nd Ed., Rupert Cross noted the essential distinction between ratio decidendi and obiter dictum, and added that ‘Obiter dictum means a statement by the way, and the probabilities are that such a statement has received less serious consideration that than devoted to a proposition of law put forward as a reason for the decision’.”
“What is deducible from the above principles of law is that a Judge is allowed to make comments in passing or by the way in his Judgment that do not impact on the question(s) for determination before the Court, and not being a reason for deciding, such comments are not appealable. If that is so, why do we have to delete the comment made in passing by Obaseki-Adejumo, JCA, from the Judgment delivered on 28/10/2015? … To do so, in my view, would lead to adverse consequences where any Tom, Dick and Harry, would rush here to complain about comments made in passing or by the way by Judges, and ask that they be deleted from Judgments that had been delivered by a Court from whatever time; I am not prepared to open up that floodgate to such litigants or counsel.”
“This Application is, therefore, granted in terms of Relief Ai only. The words at page 4 of the said Judgment – “Briefs of Argument were deemed argued in line with Order 18 rule 9 (4) of the Court of Appeal Rules 2011 in the absence of Appellants’ Counsel”, is deleted along with “None for Appellants in the column for appearances of counsel at page 28 of the Judgment, and in its place, the said column is substituted with “Mr. E. Nwonu, holding brief of Dr. Charles Mekwunye, for Appellants. The other Reliefs Aii and Aiii are refused. There is no order as to costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Order 19 rule 4 of the Rules of this Court, provides as follows: “The Court shall not review any Judgment once given and delivered by it, save to correct any clerical mistake or some error arising from an 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.”
➥ REFERENCED (CASE)
⦿ HOW TO DETERMINE IF AN AFFIDAVIT CONTAINS ARGUMENT OR CONCLUSIONS
Bamaiyi V. State (2001) 8 NWLR (Pt 715) 270 at 289 that “The test – – is to examine each of the paragraphs deposed to in the Affidavit to ascertain whether it is fit only as a submission, which counsel ought to urge upon the Court. If it is, then it is likely to be either an objection or legal argument, which ought to be pressed in oral argument; or it may be conclusion upon an issue, which ought to be left to the discretion of the Court either to make a finding or to reach a decision upon through its process of reasoning. But if it is in the form of evidence, which a witness may be entitled to place before the Court in his testimony on oath and is legally receivable to prove or disprove some fact in dispute, then it qualifies as a statement of facts and circumstances, which may be deposed to in an Affidavit. It, therefore, means that prayers, objections and legal arguments are matters that may be pressed by counsel in Court and are not fit for a witness either in oral testimony or in affidavit evidence; while conclusions should not be drawn by witnesses but left for the Court to reach.”
➥ REFERENCED (OTHERS)