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CITEC International Estate Limited & Ors. v. Josiah Oluwole Francis & Ors. (SC.116/2011, 21 February 2014)

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➥ CASE SUMMARY OF:
CITEC International Estate Limited & Ors. v. Josiah Oluwole Francis & Ors. (SC.116/2011, 21 February 2014)

by Branham Chima.

➥ ISSUES RAISED
Setting aside earlier orders;
Fair hearing.

➥ CASE FACT/HISTORY
The point of law which the Supreme Court is called upon to decide is whether or not the order of this court made in Chambers on the 28th of September, 2011 granting the Appellants/Respondents leave and extension of time to file this appeal ought to be set aside ex debitio justitae.

By a motion on notice dated 9th September, 2012 and filed on the same date, the 1st – 4th, Respondents/Applicants prayed for the following orders:- “1. AN ORDER setting aside the Order/Ruling made by this Honourable Court in Chambers on the 28th of September, 2011 wherein the Appellants/Respondents mere granted the trinity prayers to appeal against the decision of the Court of Appeal, Abuja Division in Josiah Oluwole Francis and 3 Ors v. CITEC International Estates and 6 Ors, CA/A/179/M/2007 contained in the Motion on Notice dated and filed on the 5th of April, 2011. 2. AN ORDER restoring the Motion on Notice dated and filed on the Eth of April, 2011 to the Cause List for hearing on its merits.”

➥ ISSUE(S) & RESOLUTION(S)
[PRELIMINARY OBJECTION: OVERRULED]

↪️ I. Whether the Supreme Court can hear this motion?

RESOLUTION: Yes.
[IN DETERMINING LEAVE, COURT WILL NOT CONSIDER THE RECORDS OF PROCEEDINGS ONLY
‘As was rightly submitted by the learned counsel for the Respondent/Applicant, it cannot be the right or correct position of the law that such counter processes filed by a respondent, pursuant to the Rules of Court, can be discountenanced as irrelevant in the determination of the application for extension of time and leave to appeal. My view is that if the intendment of Section 233 (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was that this court should consider record of proceedings only and not take cognizance of counter processes filed, it could have specifically said that the motion should be ex-parte. Also the said Constitution would not have given the Chief Justice of Nigeria power in Section 236 thereof, to make rules for regulating the practice and procedure of the Supreme Court. For me, there is no abuse of court process in the filing of the present motion.’

THE SUPREME COURT POSSESSES INHERENT POWERS TO SET ASIDE ITS DECISION ON THESE CONDITIONS
In Chief Kalu Igwe and 2 Ors v. Chief Okuwa Kalu and 3 Ors (2002) 14 NWLR (Pt.787) 435 at 453 paragraphs F – H and p 454 paras A – C, this court per Ogwuegbu, JSC, held as follows:- “I shall state that this court possesses inherent power to set aside its judgment in appropriate cases. Such cases are as follows: (i) 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. See Alaka v. Adekunle (1959) 6 Ch. D. 297, Olufumise v. Falana (1990) 3 NWLR (pt.136) 1. (ii) When the judgment is a nullity. A person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. See Skenconsult Ltd v. Uke (1981) 1 SC 6, Craig v. Kanssen (1943) KB 256, and 263, Ojiako and Ors v. Ogueze and Ors (1962) 1 SCNLR 112, (1962) 1 ALL NLR 58, Okafor and Ors v. Anambra State and Ors (1991) 6 NWLR (pt.200) 659, 680. (iii) When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade v. Okunoga A Co. (1961) ALL NLR 110 and Obimonure v. Erinosho (1966) 1 ALL NLR 250. In Olorunfemi v. Asho (2000) 2 NWLR (pt.643) 143, this court in its unreported Ruling dated 19/3/99 set aside its judgment delivered on 8/1/99 on the ground that it failed to consider the respondents, cross-appeal before allowing the appellant’s appeal. It ordered that the appeal be heard de novo by another panel of justices of this court. See generally Alao v. ACB Ltd (supra).”

Available:  Wema Bank Plc v. Alhaji Idowu Fasasi Solarin Osilaru (2007)

‘Having had the benefit of the views of this court in previous decisions on the issue at hand, I hold that it is beyond conjecture that this court is imbued with the vires or jurisdiction, to hear the motion of the Respondents/Applicants, the said motion not being afflicted by any known and/or incurable virus. The preliminary objection of the Appellants/Respondents is accordingly lacking in merit and is hereby overruled.’]
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.
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[APPLICATION: GRANTED]

↪️ I. Whether or not the order of this court made in Chambers on the 28th of September, 2011 granting the Appellants/Respondents leave and extension of time to file this appeal ought to be set aside ex debitio justitae?

RESOLUTION: IN APPLICANT’s FAVOUR.
[THE MOTION WAS GRANTED WITHOUT HEARING FROM THE APPLICANT; THE COURT WAS MISLED
‘Let me consider the salient facts which are settled in this case. The motion which order, granted by this court, is sought to be set aside, was filed on 5/4/11 in the Registry of this court. The Appellants who were Applicants therein undertook to serve the Respondents/Applicants. The Appellants did not serve the Respondents until 20th September, 2011 i.e. about five months after the filing of the said motion and eight days to the hearing of the motion in chambers. The Respondents/Applicants filed their counter affidavit on 27th September, 2011 which was within the time allowed by the Rules of Court. Unfortunately, because the Appellants/Respondents delayed the service of the application to just eight days before it was to be heard in Chambers, the Counter-Affidavit and reply brief filed by the Respondents/Applicants on the day before the motion was to be heard in Chambers were not brought to the attention of the court and this misled this court into granting the motion on notice as if it was unopposed by the Respondents. Clearly, the above facts show that the ruling of this court dated 28/9/11 granting the prayers contained in the motion filed on 5/4/11, by the Appellants is a nullity due to the fact that the Applicants/Respondents were not afforded their right to fair hearing and being that the Rules of this Court were breached.’

THE EARLIER PANEL WAS NOT AWARE OF THE COUNTER AFFIDAVIT, IF NOT MOTION WOULD HAVE BEEN HEARD IN OPEN COURT
‘From the ruling of this court made on 28/9/11, there is no indication that the panel was aware of the counter-affidavit of the Respondents/Applicants. If they were aware, I am sure they would have referred the matter to be heard in the open court as usual. It is not the practice of this court to hear contentious matters in chambers. I think it is in the interest of justice that the said order should be set aside, the fact that the Respondents/Applicants have not paid cost earlier awarded against them notwithstanding. It cannot affect the justice of this case due to its peculiar facts.’

Available:  Chime & Ors. v Chime & Ors. (2001) - SC

‘The 1st- 4th respondents/applicants’ prayer to set aside the ruling made by this Honourable Court in Chambers on 28/9/2011 granting the appellants leave and extension of time to appeal contained in the motion filed, on 5/4/2011 in SC/116/2011 was predicated on the ground that the court had assumed that the respondents did not object to the granting of the application whereas they had filed a counter – affidavit and respondents’ brief opposing the motion two days to the hearing of the motion but the processes were not brought to the attention of the Justices. The court was therefore misled to believe that the respondents were not opposing the application.’]
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.
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✓ DECISION:
‘In view of all I have endeavoured to say above, I hold that this application has merit and is accordingly granted by me. I hereby make the following orders: 1. I hereby order that the order/ruling made by this court in Chambers on the 28th of September, 2011 wherein the Appellants/Respondents were granted the trinity prayers to appeal against the decision of the Court of Appeal Abuja Division in Josiah Oluwole Francis and 3 Ors v. CITEC International and 6 Ors, CA/A/179/M/2007 contained in the Motion on Notice dated and filed on the 5th of April, 2011 be and is hereby set aside. 2. The said motion on notice dated and filed on the 5th of April, 2011 is hereby restored to the Cause List for hearing on the merit. 3. I make no order as to costs.’

➥ FURTHER DICTA:
⦿ THE SUPREME COURT CANNOT SIT ON APPEAL OVER ITS OWN DECISION
Having said that may I state that by virtue of Section 235 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Supreme Court cannot sit on appeal over its own judgment. The provision gives a stamp of finality to any decision of the Supreme Court. There is no constitutional provision for the review of the judgment of the Supreme Court by itself. See Eleazor Obioha v. Innocent Ibero and Anor (1994) 1 NWLR (pt.322) 503. However, it has been held by this court that the Supreme Court possesses inherent power to set aside its judgment in appropriate cases but that such inherent jurisdiction cannot be converted into an appellate jurisdiction as though the matter before it is another appeal, intended to afford the losing litigants yet another opportunity to re-state or re-argue their appeal. — J.I. Okoro JSC.

⦿ APPLICANT SEEKING TO SET ASIDE ORDER/JUDGEMENT OF THE SUPREME COURT MUST SHOW NON-COMPLIANCE WITH THE RULES
From the above rule of this court, an applicant seeking to set aside any order or judgment given as per these rules, must show evidence of non-compliance with the rules or for other irregularities arising from the rules of practice and procedure in the court. Reading through the facts leading to this application, one would readily see that there was some non-compliance due to lapses caused by the Appellants/Respondents and the Registry of this Court. — J.I. Okoro JSC.

⦿ FAILURE OF COURT TO CONSIDER AFFIDAVIT IS A BREACH OF FAIR HEARING
In Order 6 Rules (2) and (4) of the Rules of this court, in an application for leave to appeal or for enlargement of time within which to seek leave to appeal, a respondent may, if he so desires, file in reply a counter affidavit. It follows that in considering the application for leave to appeal, the court has a duty to also consider the counter affidavit of the Respondent before arriving at a decision. Failure to consider the counter affidavit, as was done in this case is not only an irregularity but a clear denial of fair hearing to the Respondent/Applicant herein. — J.I. Okoro JSC.

Available:  Sunday Kajubo v. The State (1988)

⦿ A COURT HAS INHERENT POWERS TO SET ASIDE ITS OWN ORDER MADE WITHOUT
In sum, I hold firmly that where a judgment of this court or an order thereof is adjudged a nullity, a party affected thereby is entitled to have it set aside ex debito justitiae. The court has inherent jurisdiction or power to set aside its own order or decision made without jurisdiction if such order or decision is in fact a nullity or was obtained by fraud or if the court was misled into granting same by concealing some vital information or facts. See Igwe v. Kalu (supra), Vulcan Gases Ltd v. G.F. Ind. AC (2001) 9 NWLR (pt.719) 610 at 644 – 645 paras H – A. — J.I. Okoro JSC.

⦿ A COURT OF RECORDS HAS THE INHERENT POWERS TO SET ASIDE ITS DECISION WHERE
The Supreme Court, and any other superior court of record, possesses inherent power to set aside its judgment in appropriate cases. Such circumstances include: a. When the judgment is obtained by fraud or deceit b. When the judgment is a nullity and a person affected by the order is entitled ex debito justitiae to have it set aside. c. When the court was misled into giving judgment under the mistaken belief that the parties had consented to it. d. Where judgment was given in the absence of jurisdiction. e. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. See: Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250; A.D.H. Ltd. v. Amalgamated Trustees Ltd, (2007) ALL FWLR (Pt.392) 1781 @ 1840 C – F; Alao v. A.C.B. Ltd. (2000) FWLR (Pt. 11) 1858; (2000) 9 NWLR (Pt.672) 264; Igwe v. Kalu (2002) 14 NWLR (Pt.787) 435; Madukolu v. Nkemdilim (1962) SCNLR 341; Obimonure v. Erinosho (1966) All NLR 245. — K.M.O. Kekere-Ekun JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
John Inyang Okoro, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPLICANT(S)
Kehinde Ogunwumiju Esq.

⦿ FOR THE RESPONDENT(S)
Prof. Taiwo Osipitan SAN.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)
⦿ WHERE PRINCIPLES OF NATURAL JUSTICE IS BREACHED, DECISION WILL BE NULLIFIED NO MATTER HOW WELL CONDUCTED
In Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23 at 44, this court held as follows:- “It also has to be remembered that the denial of fair hearing was a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void… If a principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same; the proceedings will still be null and void. In other words, if the principles of Natural justice are violated in respect of any decision, it is immaterial, whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. See also Ndakauba v. Kolomo (2005) 4 NWLR (pt.975) 411 at 430 – 431 paras H – D.

➥ REFERENCED (OTHERS)

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