MARTIN AGBASO v IKEDI OHAKIM & 2 OTHERS (CA/OW/254/2010) [2011] NGCA 3 (19 January 2011)

In The Court of Appeal

(Owerri Judicial Division)

On Wednesday, the 19th day of January, 2011

Suit No: CA/OW/254/2010


Before Their Lordships



....... Justice, Court of Appeal


....... Justice, Court of Appeal


....... Justice, Court of Appeal
























WORDS AND PHRASES - "FUNTUS OFFICIO": Meaning of the term "functus officio"



"In UKACHUKWU v. UBA (2005) 18 NWLR Pt.956 Pg. 1 at 60, this court held as follows: "It is clear that functus officio means a task performed fulfilling, discharging the office or accomplishing the purpose and thereby becoming of no further force or authority' Thus if a court is said to become functus officio in respect of a matter it means that the court has fulfilled or accomplished its function in respect of that matter and it lacks potency to review, re-open or revisit the matter. It is therefore the general principle of law that once a court delivers its judgment on a matter and it cannot revisit or review- the said judgment except under certain conditions."Per OGUNWUMIJU, J.C.A.(P. 85, paras. C-F)






JUDGMENT AND ORDER - AN ERROR OF LAW AND ERROR ON THE FACE OF THE RECORD: Distinction between an error of law and an error on the face of the record



"A distinction must necessarily and constantly be drawn between an error of law, as in the instant case which can only lead to an appeal (if any) and an error on the face of the record, characterised in bad faith and thereby subject to collateral challenge on jurisdiction that will completely invalidate the order or decision."Per OWOADE, J.C.A.(P. 58, paras. A-B)  






JUDGMENT AND ORDER - BIASED JUDGMENT: Whether where there is an element of bias in a judgment, such judgment must be set aside



"In Re Pinochet there was an allegation brought up after the judgment of the House of Lords that one of the law Lords had been a voluntary member of the Board of Amnesty International (a party in the suit) when the judgment was given by the court to the effect Pinochet was not entitled to immunity from prosecution after his tenure as the Head of State of Chile' The House of Lords held that applying the text in R v. GOUGH (1993) AC 646 and WEBB v. OWEEN (1994) 181 CLR 41, since one of the law Lords precisely Lord Hoffman was proved to have had links with Amnesty International then there was a danger that he was biased in favour of Alor alternatively that he had such links which had given rise to a reasonable apprehension and suspicion on the part of a fair minded and informed member of the public that he might have been biased. The House of Lords held that where there is appearance of lack of fair hearing precisely bias, the decision must be held to be improper. The House of Lords then held that in spite of lack of exact precedent on the point, their Lordships must have jurisdiction to set aside its own orders where they have been improperly made, since there is no other court which could correct such impropriety. The extra-ordinary situation considered by the House was the issue that the facts of the extent of the involvement of Lord Hoffman with Amnesty International where he served without pay on the Board of a charitable arm was brought to their knowledge after their judgment was delivered. The House considered these "fresh facts" which came to light after they delivered their judgment to set aside their judgment which might be perceived as partial or biased and thus against the fundamental human rights of Pinochet."Per OGUNWUMIJU, J.C.A.(Pp. 78-79, paras. C-C)






JUDGMENT AND ORDER - DECISION GIVEN PER INCURIAM: When a decision of Court can be said to be given per incuriam



"In Umaru vs. Aliyu (2010) All FWLR (pt. 508) 321 at 357, this Honourable Court held: 'A decision can be said to be given per incuriam when it was wrongly decided based on a wrong principle of law or the Judge or Judges were ill informed about the applicable law."Per OWOADE, J.C.A.(P. 51, paras. A-C)






JUDGMENT AND ORDER - DECISION GIVEN PER INCURIAM: Whether a judgment of Court given per incuriam can be set aside



"...the remedy of setting aside is not appropriate for a decision reached per incuiam which can always be appealed against and can be avoided as authority or precedent for subsequent cases. The following statement of the law arose from the decision of the Court of Appeal in the case of Charles Udogwu Onyekweli vs. Independent National Electoral Commission (INEC) (2009) 6 NWLR (Pt. 1136) 13 at 32 (per Ogunwumiju, JCA). "...The question here is that can the decision of this Court invested with constitutional finality be set aside by reason of its being arrived at per incuiam?. A Judgment per incuriam is one which has been rendered inadvertently. For example, where the judge has forgotten to take into consideration's previous decision to which the doctrine of stare decisis implies. For all the care with which counsel and judges may comb the law books, errare humanum est, sometime a judgment which clarifies a point to be settled is somehow forgotten. Such a judgment which contradicts a settled principle of law by a superior court is said to be per incuriam it cannot for that reason only be set aside- When the judgment is deemed per incuriam the implication is that it cannot be used as authority or precedents by court of concurrent or inferior jurisdiction. See Rossel vg. ACB Ltd., (1993) 8 NWLR (Pt. 312) P.382."Per OWOADE, J.C.A.(Pp. 51-52, paras. C-B)






JUDGMENT AND ORDER - DECISION OF COURT: Effect of an order, decision or judgment of Court made within jurisdiction



"...the decision of the Court of Appeal in Onyekweli vs. INEC (supra) at page 29 has reiterated the principles that an order or judgment made within jurisdiction is not a nullity or invalid even if it is erroneous in law and in fact or perverse. General & Aviation Services Ltd. vs. Captain Paul M. Thahal (2004) 4 SCNJ 89, (2004) 10 NWLR (pt. 880) p.50. That, a wrong judgment is not a nullity when the court was not incompetent. Alh. Jiddun vs. Abba Abuna & Anor (2000) 10 SCNJ 14, (2000) 14 NWLR (pt. 686) p. 209."Per OWOADE, J.C.A.(P. 57, paras. A-C)






JUDGMENT AND ORDER - DECISION ON THE MERITS AND MERITS OF A CASE:Distinction between a decision on the merits and the merits of a case



"Thus when you refer to a decision on the merits, it is not limited to when all the substantive issues in a cause of action is determined but envisages a situation in which an issue brought up for consideration is litigated upon and determined. When you talk about the merits of a case, you are referring to the elements or grounds of a claim or defence or substantive point of law being proposed in that regard which constitutes the substantive consideration to be taken into account in deciding a case. This of course, is different or opposed to extraneous or technical points. There is a decision on the merit when a substantial question of law in respect of which arguments in favour of more than one interpretation has been adduced by both parties in the litigation. See OKENWA v. MIL. GOV. IMO STATE (1996) 6 SCNJ 221. In OBASI v. MBAS LTD. (2005) 9 NWLR Pt.929 Pg.117 at Pg.128, the court held: "A final judgment is one which decides the rights of the parties. In other words it is a decision on the merits of the case where the matter is assiduously canvassed and the rendition of a judgment is based on what is canvassed and agitated before the courts by the legal combatants." It is when a judgment is delivered in default of any party who has offended a technical rule of court i.e. in default of pleadings or in default of appearance etc that the judgment is deemed to be not on the merit and will be liable to be set aside upon good reasons advanced for the default"Per OGUNWUMIJU, J.C.A.(Pp. 86-87, paras. D-D)






INTERPRETATION OF STATUTE - ERRONEOUS INTERPRETATION OF A STATUTE:Effect of a wrong interpretation of the provisions of a Statute



"A statute can be described as unconstitutional if it is contrary to or in conflict with the constitution. The pronouncement of a court made within jurisdiction on the other hand cannot be described as unconstitutional. A wrong or erroneous interpretation of the provisions of the constitution is and remains an error of law, which under normal circumstances can only be a subject of appeal. Put differently, an erroneous interpretation of the constitution is still intrinsic to the judicial process and thereby appealable.The common law position as to review or setting aside of a decision of a court of coordinate jurisdiction relate to circumstances that are extrinsic to the adjudicatory process. It is generally recognised that patent errors of law do not vitiate the decision but merely render it voidable and appealable - see, Parker, L.J. in R. v. Medical Appeal Tribunal Ex parte Gilmore (1957) 1 QB 574, and are thus immune from collateral challenge, that is proceedings brought before the court that will completely invalidate the order, act or decision"Per OWOADE, J.C.A.(Pp. 49-50, paras. D-A) - read in context






CONSTITUTIONAL LAW - FAIR HEARING: The doctrine of fair hearing



"Fair hearing means parties are given opportunity to present their case and the courts are impartial. See EGEVAFO EKPETO v. IKOMO WANOGHA (2004) 12 SCNJ 220. The twin pillars of natural justice are (1) the rule against bias - You cannot be a judge in your own cause - nemo judex in causa sua. The 2nd pillar is that there must be equal access to justice - You must hear the other side - audi alteram partem. See UNIPETROL PLC v. BUKAR (1991) 2 NWLR Pt.488 Pg.412."Per OGUNWUMIJU, J.C.A.(P. 77, paras. E-G) - read in context






CONSTITUTIONAL LAW - FAIR HEARING AND FAIR TRIAL: Distinction between fair hearing and fair trial



"A fair hearing does not mean a fair trial. A fair trial consists mainly of a fair hearing. A fair trial consists of the entire hearing of the case. Thus a fair hearing may not necessarily result in a fair trial. An appellate court may rule that a trial has been unfair because the appropriate law was not applied or interpreted properly or the evidence was not properly evaluated leading to perverse finding. See OGBOH v. FRN (2002) 4 SCNJ 393; MOHAMMED v. KANO N.A. (1963) 1 ALL NLR Pt.424; GBADAMOSI v. ODIA (1992) 6 NWLR Pt. 245 Pg. 491."Per OGUNWUMIJU, J.C.A.(P. 77, paras. A-C) - read in context






COURT - FUNCTUS OFFICIO: When the Court becomes functus officio



" virtue of S.246 of the 1999 Constitution. When judgment is given on the merits, the court is functus officio, See MOHAMMED v. MOHAMMED HUSSIENE (1998) 12 SCNJ 136; (1998) Pt.584 Pg.108."Per OGUNWUMIJU, J.C.A.(P. 84, paras. D-E) -read in context






COURT - FUNCTUS OFFICIO: Instance where the Court does not become functus officio



"It is only in instances of default judgment which is not on the merits that a judge does not become functus officio. See MOHAMMED v. HUSSIEN (1998) 12 SCNJ 136. Thus, where a final order or final decision on a point has been given - I am talking about the definition of "decision" in S.318(1) of the 1999 Constitution, then, the court is functus officio. See FALOLA v. UNION BANK (2005) 2 SCNJ 209 at 214, which followed, OMONUWA v. OSHODIN (1995) 2 NWLR Pt. Pg.938; AWUSE v. ODILI (2003) 18 NWLR Pt. 852 Pg. 116"Per OGUNWUMIJU, J.C.A.(P. 87, paras. D-G) - read in context






JUDGMENT AND ORDER - JUDGMENT GIVEN ON THE MERITS: When a judgment can be said to be given on the merits



"Listen for example to Chukwuma Eneh, JCA (as he then was) in the case of Ibok v. Eyo Honesty (Supra) at page 69 cited by the applicants counsel himself, "It is trite law that an order judgment on the merits is one given after argument and investigation and when it is determined which party is on the right that is in contradistinction to an order/judgment given upon preliminary or formal or merely technical point or by default or without trial."Per OWOADE, J.C.A.(P. 53, paras. A-C) - read in context






COURT - JURISDICTION: Conditions precedent to the exercise of jurisdiction by Court; effect of Court decision where it lacks jurisdiction



"In JIDDUN v. ABUNA (2000) 14 NWLR Pt.686 Pg.209; WALI JSC at Pg.216 held as follows: "There is nothing to show that the Sharia Court of Appeal was incompetent when it heard the appeal. Its decision could be wrong but certainly not nullity," Let me go back to the much cited authority of Bairamian F. J. in MADUKOLU v. NKEMDILIM (1962) SCNLR 341, where His Lordship put the whole matter in proper perspective thus: a court is competent when - "1. It is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another and; 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and 3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent of the exercise of jurisdiction. He continues: 'Any defect in competence is fatal' for the proceedings are a nullity however well conducted and decided: that defect is extrinsic to the adjudication. If the court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial;....."Per OGUNWUMIJU, J.C.A.(Pp. 82-83, paras. G-F) - read in context






ELECTION PETITIONS - JURISDICTION IN ELECTION PETITION: Whether any complaints regarding any conduct and administration in an election is within the jurisdiction of the Election Petition Tribunal



"The Supreme Court held on 16/7/10 in Appeal No. SC/3/2010, SC/51/2010 and SC/54/2010 Consolidated. CHIEF OHAKIM v. CHIEF AGBASO to the effect that any complaints regarding any conduct and administration of the April 14, 2007 election held in Imo State by INEC including the processes leading thereto and actual conduct of the election whether inchoate or not is properly within the jurisdiction of the Election Petition Tribunal established by the Constitution."Per OGUNWUMIJU, J.C.A.(Pp. 68-69, paras. F-A






ELECTION PETITIONS - JURISDICTION IN ELECTION PETITION: Whether the Court of Appeal is vested with finality in some election petition matters



"The Court of Appeal being invested with finality in some election petition matters by virtue of S. 246 particularly subsection (3) thereof of the 1999 Constitution is mutantis mutandis in the same position as the Supreme Court and will not permit a reversal or review of its judgment."Per OGUNWUMIJU, J.C.A.(P. 90, paras. B-C)






INTERPRETATION OF STATUTE - ORDER 18 RULE 4 OF COURT OF APPEAL RULES, 2007: The provision of Order 18 Rule 4 of the Court of Appeal Rules 2007 with respect to the powers of Court to review its judgment



"Or 18 r 4 of the Court of Appeal Rules 2007 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 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."Per OGUNWUMIJU, J.C.A.(P. 89, paras. C-F)






COURT - POWER OF COURT: Whether a Court or a judge has the power to rehear, review or vary any judgment or order either in an application made in the original action or in a fresh action brought for that purpose



"In Igwe vs. Kalu (2002) 14 NWLR (Pt. 787) 435 at 453 - 454, the Supreme Court held that it 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 parties, such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Alaka vs. Adekunle (1959) LLR 76, Flower vs. Lloyd (1877) 6 Ch. D. 297, Olufunmise vs. Falana (1990) 3 NWLR (Pt. 136) 1. (ii) When the judgment is a nullify. 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 Sken consult Ltd. v. Ukey (1981) 1 SC 6, Craig vs. Kansen (1943) KB 256, 262 and 263, Ojiako & Ors v. Ogueze & Ors. (1962) 1 SCNLR 112, (1962) 1 All NLR 58, Okafor & Ors v. Anambra State & 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 vs. Okunoga & Co. (1961) All NLR 250. It is these same body of rules which requires that limits be placed upon the right of citizens to open or reopen disputes qualifying the principle that the outcome of litigation should be final that have been variously expressed with different emphasis and phraseologies in such other cases as Ukachukwu vs. UBA (No.2) (2005) 9 NWLR (Pt.390) 370, Bello vs. INEC (2010) 1 NWLR (Pt. 1196) 342 at Pp.379 - 380. 418 -419, Osakwe vs. Federal College of Education (Technical) (2010) 10 NWLR (pt.1201) 1 at 32 to mention but a few. Thus, in the case of Ukachukwu vs. UBA (supra) at 370, after setting out the possibilities of setting aside its judgment in instances of fraud or deceit, nullity of order, mistaken belief in consent and absence of jurisdiction, the court also mentioned instances "where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication". Similarly, in Bello vs. INEC (Supra) at pp. 379 - 380, 428 - 419, the following phraseology would be seen in the judgment of the Supreme Court. ".....A court has an 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" (underlining emphasis supplied). A refreshing summary of the applicable general rule and its limits and/or exceptions could be found in the judgment of M.D Muhammad JCA, in Olarotimi Makinde vs. Albert Abiodun Adeoqun and 4 Others (2009) 1 NWLR (Pt. 1123) 575 at 591 - 592. "As a general rule, no court or judge has the power of rehearing, reviewing or varying any judgment or order either in an application made in the original action or in a fresh action brought for that purpose. That task ordinarily belongs to the appellate body by law empowered. The rule which is informed by the policy that litigations must be brought to an end, has many exceptions. These exceptions are either as provided for by the applicable rules of court or under the inherent jurisdiction of the court. If not so empowered, the court that had determined a- cause or matter ceases to possess further power in dealing with the case except with respect to such ancillary matters as stay of execution, instalmental payment etc. The court is said to have become functus officio, its powers to review or vary the decision having been assigned to an appellate body. See Edem vs. Akampa L.G. (2000) 4 NWLR (Pt, 651) 70 at 81, Uba vs. Ukachukwu (2004) 10 NWLR (Pt. 881) 224 at 306, Okoye vs Nigerian Construction and furniture co. Ltd. (1991) 16 NWLR (Pt. 199) 501, Aniqboro vs. Sea Trucks (Nig.) Ltd. (1995) 16 NWLR (Pt.199) 501, Anisboro vs. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (Pt. 399) 35, Peters vs. Ashamu (1995) 4 NWLR (Pt. 388) 206 and Akporue vs. Okei (1973) 12 SC 137."Per OWOADE, J.C.A.(Pp. 54-56, paras. B-G)






COURT - POWER OF COURT: Whether a Court can reopen a matter and substitute a different decision in place of the one it earlier recorded



"...the principle of law that where a court has decided an issue and the decision is correctly embodied in its judgment, such a court cannot reopen the matter and cannot substitute a different decision in place of the one which was recorded. Those who seek to alter or amend it must invoke such appellate jurisdiction as may be available. See, Obioha vs. Ibero (1994) 1 NWLR (pt.322) 503 at 534."Per OWOADE, J.C.A.(P. 58, paras. F-G)






COURT - POWER OF COURT: Whether in the most exceptional circumstances, the Court has power to revisit its own decisions



"The position taken by the court of Appeal (England) in the case of Taylor vs. Lawrence (supra) is understandable because there were no such "exceptional circumstances which would justify the re-opening of the appeal. In other words' the judgment initially rendered on appeal in the case was not a nullity, there was no such fundamental defect or want of jurisdiction to warrant the setting aside of the judgment. On the issue of bias, the Court of Appeal (England) found specifically in the Taylor vs. Lawrence case (2002) EWKA Vic 90 (4th February, 2002) at page 12 of 18 that "The bias which is alleged here is in the Court of first instance and not the appellate court. This does not mean that the jurisdiction to which we have referred cannot exist. It is, however, important to have in mind that what the lawrences are seeking to do is to adduce further evidence of bias after this court has already considered an appeal where the issue of bias was raised and it was decided that no case of bias on the part of the deputy circuit judge was made out." On the other hand, the order of setting aside in the Senator Pinochet's case had to be granted because the facts and circumstances of the case met the requirement of a fundamental defect in procedure. It was only proper that Lord Hoffman could have excused himself from sitting on the case. In jurisdictional terms, the Court Tribunal was not properly constituted and the challenge of jurisdiction was proper. Senator Pinochet's case upheld the fundamental principle that a man may not be a judge in his own cause. In the Pinochet's case. after the House of Lords had concluded hearing and delivered its judgment in the application for Senator Pinochet who was the Head of State of Chile from 1973 until 1990 to be extradited and tried in Spain, it was discovered that one of the law Lords (Lord Hoffman) who took part in the decision of the House has a very close relationship with one of the applicants (Amnesty International). It was contended that the circumstances of the closeness between his Lordship (Lord Hoffman) and one of the applicants (Amnesg International) was such that it was reasonable to believe that the judgment of the House in which his Lordship took part was affected by bias. It was on the strength of this "later discovery" that the House of Lords entertained the application to re-open the appeal and granted the order for setting aside. Truly, Senator Pinochet's case represents the exercise of the extant jurisdiction of their Lordships at the House of Lords as the final court to rescind or vary an earlier order of the House when such order had been visited by one form of nullity or the other. Pinochet's case however, turned out to re-proclaim some of those salient and fundamental values of law itself. The case turned out to be a classic exposition of the principle of nemo Judex in causa sua (no man can be a judge in his own cause) and doubles up as the 21st

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