PRINCE YAHYA ADIGUN AND 2 ORS (APPELLANT)
v.
THE ATTORNEY GENERAL OF OYO STATE (RESPONDENT)
(1987) All N.L.R. 328
Division: Supreme Court of Nigeria
Date of Judgment: 14th April, 1987
Case Number: (SC 98/1986)
Before: Obaseki, Bello, Eso, Nnamani, Coker, Karibi-Whyte, Kawu, Oputa; JJ.S.C.
On the 20th March, 1987, the Supreme Court gave judgment in the appeal by the Appellants now Applicants, against the judgment of the Court of Appeal, wherein their appeal again to the judgment of the High court was dismissed in its entirety. The appeal to the Supreme Court was allowed in part and certain consequential orders were made. The present application is by the appellants invoking the provisions of section 6(6)(b) of the Constitution, 1979 on the inherent jurisdiction of the Supreme Court, and asking for an order for a reversal of the decision earlier given by the Supreme Court. In effect, the appellants were seeking as relief, an appeal to the Supreme Court against its decision.
HELD
(1) Section 6(6)(a) of the 1979 Constitution which provides judicial powers vested in the Courts shall extend notwithstanding anything to the contrary in the constitution to all inherent powers and sanctions of a court of law does not empower the court to review its own decision. If it were otherwise, there would be no finality about any judgment of this Court and every affected litigant could bring further appeals as it were ad infinitum. That is a situation that must not be permitted.
Appeal dismissed.
Chief F.R.A. Williams S.A.N. for Appellants with him S.B. Johnston; F.R.A. Williams (Mr).
Mr O.A. Boade, Snr. State Counsel, Oyo State for 1st, 6th-19th Respondents.
Chief J.O. Fawole & O. Ojutiku for 2nd, 3rd, 4th & 5th Respondents.
Cases Referred to:-
1. Ashiyanbi v. Adeniji (1967) 1 All NLR. 82.
2. Austin Moherman v. Nickels and Ors. 143 ALR. 1174, 1177.
3. Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SC.N.R. 290.
4. Chief Iro Ogbu & Qrs v. Chief Ogburu Urum (1981) 4S.C.I.
5. Chukwuka v. Ezulike (1985) 5 N.W.L.R. 892 at 899.
6. Hunley v. Wooton (1912) 29 TLQ 132.
7. Ikechukwu & Ors v. Nwamkpa (1967) NMLR. 224.
8. Minister of Lagos Affairs, Mines and Power & Anor v. Chief Akin-Olugbade & ors. (1974) 1 All NLR pt. 1 226.
9. National Telephone Co. v. Post Master-General (1913) A.C. 546
10. Nafiu Rabiu v. Kano State (1980) 8-11 SC. 130.
11. Oba Jacob Oyeyipo v. Chief J.O. Oyinloye (1987) 1 NWLR (Part 50) 356.
12. Obimunore v. Erinosho (1966) 1 All NLR 250.
13. Patrick J. Osoba v. The Queen F.SC 141/196/decided on May 19, 1961.
14. Shynne v. Shynne (1955) 3 All. ER 129 at 146.
15. Sodeinde Brothers (Nig.) Ltd v. African Continental Bank Ltd. (1982) 6 SC. 137.
16. Sken Consult (Nig.) Ltd & Anor. v. Godwin Okey SC/58/1980.
17. Varty v. British South Africa Co. 1965 1 Ch 508.
18. Yonwuren v. Modern Signs (Nig.) Ltd, 1985 1 NWLR Pt 2. 244
Statute Referred to:-
1. Constitution of the Federal Republic of Nigeria 1979.
Rule Referred to:-
Rules of the Supreme Court (England).
Coker, J.S.C. On the 20th day of March 1987, the plaintiffs' appeal from the decision of the Court of Appeal was partly allowed in respect of item 2, but their claims seeking an order for declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy and for injunction against the defendants were dismissed. The Court further ordered inter alia that-
"A proper inquiry to be the basis of a new and proper declaration should be set in motion so that the stool vacancy can be filled within a minimum of delay."
The plaintiffs claims against the defendants jointly and severally were-
"(1) A declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made.
(2) A declaration that the Instrument dated 28th day of July, 1981 is in so far as it purports to declare the customary law prevailing in Iwo with respect to the appointment to the Oluwo of Iwo Chieftaincy, is wrong and accordingly illegal and void.
(3) An injunction restraining all servants, officers or agents of the Government of Oyo State or of the Iwo Central Local Government from acting pursuant to or taking any steps to implement the aforesaid declaration registered on 29th July, 1981."
The plaintiffs, it would appear from their application which I set out below, were not satisfied with the decision of the Court, applied to the Court for the following order-
"(1) that notwithstanding the provisions of Order 8 Rule 16 of the Supreme Court Rules this Honourable Court shall entertain the prayers contained in paragraph (ii) of this motion on Notice
(2) that the judgments delivered by the Justices of this Honourable Court on the 20th day of March 1987 be amended to read as if-
(a) the decision to dismiss the first claim of the plaintiff (i.e. the claim for declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House from which appointment to the Oluwo of Iwo Chieftaincy is to be made) were deleted and that there should be substituted therefore a decision granting the said declaration.
(b) all references to orders (in the nature of mandatory or prohibitory injunction or of mandamus or otherwise howsoever) not included among the reliefs claimed by the plaintiffs and directed against the said plaintiffs or directed against any of the other parties to the action were deleted from the said judgments.
(3) Such further or other orders as this Honourable Court may deem fit to make."
The application further stated that the Plaintiffs/Appellants at the hearing of the Application will be relying on "the Record of Appeal, the Briefs filed by all the parties to the appeal and a brief to be filed in support of the application as soon as practicable hereafter." The grounds on which the application were stated include the following-
"(i) Order 8 rule 16 of the Supreme Court Rules ought not to be construed so as to deprive the Supreme Court of its undoubted inherent jurisdiction to correct errors drawn to its attention.
(ii) Order 8 rule 16 of the Supreme Court Rules is incapable of bearing a construction which has the effect of nullifying or rendering ineffective the provisions of Section 6(6) (a) of the Constitution of the Federal Republic of Nigeria, 1979.
(iii) In the premises it is competent for this Honourable Court to entertain prayers (ii) (a) and (b) of this Motion on Notice.
(iv) The learned Justices of this Honourable Court overlooked the effect of Section 9 of the Chiefs Law Cap. 21 Laws of Oyo State and its impact on the Plaintiffs' first claim.
(v) Save as expressly stated in their Statement of Claim, the Plaintiffs herein are not claiming any order or orders (in the nature of mandatory or prohibitory injunction or of mandamus or otherwise however) against any of the other parties to this action and none of the defendants herein have failed a counterclaim to the plaintiff's action.
(vi) The decision whether or not to hold an inquiry into a Chieftaincy declaration is regulated by Section 10, 11, 12 and 13 of the chiefs Law of Oyo State and is purely one vested by law in the two tiers of the Executive Branch of the Government.
(vii) The decision whether to process the appointment of the next Oluwo of Iwo forthwith, or only after effect has been given to any decision to initiate and complete steps necessary to amend existing declaration relating to the Chieftaincy, is purely one for the Executive Branch of the Government.
(viii) In the Premises neither the court of trial nor this Honourable Court can, as part of its final judgment in the action herein, properly make the orders restraining or dispensing with the operation of the chieftaincy declaration now currently in force or direct the Oyo State Government to hold an inquiry into any matter concerning the chieftaincy."
Order 8 rule 16 of the Supreme Court Rules 1985 referred to in grounds (i) and (ii) above reads-
"(16) 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 and substantive part of it be varied and a different form substituted."
A careful reading of the application and the grounds for making it leave one in no doubt that what the applicants were seeking is to challenge the validity of and for a reversal of the decision given by this Court delivered on the 20th March 1987. The application calls into question the Constitutional validity of Order 8 rule 16 of the Supreme Court Rules 1985 and questions the validity of the order that a "new and proper declaration should be set into motion so that the stool vacancy can be filled within a minimum delay." In effect, the application was seeking as relief, an appeal to the Court against its decision.
When the application was called on Monday the 6th instant the Court asked Chief Williams, S.A.N., learned Counsel for the applicant whether the Court has the jurisdiction to entertain the applications. The learned Senior Advocate submitted that the Court has the power under its inherent jurisdiction and that is cumulative to the power of the court under Order 8 rule 16 of the Supreme Court Rules 1985 and does not derogate from the power vested under section 6(6) (a) of the 1979 Constitution of the Federation. He then proceeded to submit that, notwithstanding the provision of section 215 of the Constitution, the Court has the inherent jurisdiction to review its decision and alter same as if it was sitting on appeal over its own decision. His argument and submissions were exactly the same as he did in at least three similar applications or matters which were rejected by this Court. As he was unable to advance any convincing argument to persuade the court to change its view as expressed in Minister of Lagos Affairs Mines and Power & Anor. v. Chief Akin-Olugbade & Ors. (1974) 11 S.C. 11 and other cases cited, the application was summarily dismissed on 6th April 1987 and I now give my reasons.
The earlier 1977 Rules of this Court, Order 7, rule 30 (1977 Rules) is identical with the Order 8, rule 16 of the 1985 Rules of the Supreme Court. The Rule reflects the view of the Courts relating to the extent of the power to correct or amend any error or mistake in any decision once given and delivered. See also Order VII, rule 29 of the Supreme Court Rules 1961 which provided that-
"The Court shall not review any judgment once given and delivered by it save and except in accordance with the practice of the Court of Appeal in England."
The said rule came before the Court for consideration in Minister of Lagos Affairs Mines and Power & Annor. v. Chief Akin-Olugbade & Ors. (1974) 11 S.C. 11, Elias C.J.N. (as he then was) delivering the Ruling of the Court on an application by Chief F.R.A. Williams as counsel for the Egba Refugees (186) Descendants Community for an order.
"(1) to review the decision of this Honourable Court delivered in the above-matter (i.e. Atkin-Olugbade & Ors. v. Onigbongbo Community & Ors. (1974) 6 S.C.1 delivered on June 21, 1974) pursuant to the provisions of Order VII rule 29 of the Supreme Court Rules 1961 in the manner and on the grounds set forth in schedule 1 of the Motion on Notice."
Objection was taken in limine by the respondents on the ground that the Court had no jurisdiction to entertain the motion, the court having held the view that application was not an appeal, the applicant was ordered to show that the Court had jurisdiction. As in this application, learned Counsel, Chief Williams, submitted that the court was entitled to review its own previous decisions-
"(a) Where the order of the Court has not been drawn up at the time of the application for a review and
(b) Where the decision sought to be reviewed was given without jurisdiction."
In his argument before the court learned Counsel referred to Asshiyanbi & Ors. v. Adeniji (1967) 1 All N.L.R. 86 and Varty v. British South Africa Coy. (1965) 1 ch. 508 and In re Barber (1886) 17 Q.B.D.259. at p. 14 Elias, C.J.N. said-
"Learned Counsel submitted that in (b) it is immaterial whether the order has been drawn up or not, and further that the two principles enunciated by him would apply to any final court of appeal. He referred us to Ashiyanbi and Ors. v. Aeniji (1967) 1 All N.L.R. 82, where this Court thoroughly examined the circumstances in which it will review its own previous judgment. We will do no more than observe that this case is one involving and decided upon the "slip rule" for the correction or modification of an order or orders embodied in a judgment on the ground that the order as drawn up did not represent what the court had intended to record. The case is clearly no authority for the proposition that issues relating to fact or law in the judgment itself could be the subject matter by this Court."
And later at p. 16, he stated-
"Learned Counsel or the applicants also argues that in Varty v. British South African Coy. (1965) 1 Ch. 508 and In Re Barber (1886) 17 Q.D. 259 the Court of Appeal in England reversed its previous decision in each case after a review following further arguments by counsel on certain points. We would only say here that in such cases involving a review of matters of fact or law, the court of Appeal in England has always acted suo motu, and that we are unable to agree with learned Counsel that such reviews had been undertaken at the instance of a party to the case. No authority was cited to us on this point, although learned Counsel erroneously attempted to equate the amendment of the compromise judgment in the instant Onigbongbo Community Case with the situation under discussion."
Finally, at p. 19 he stated-
"We are firmly of the view that Order 7, r. 29 of our Supreme Court Rules, 1972 envisages only an application for the invocation of the "slip rule" as adumbrated in Ashiyanbi's case and that it does not enable an application to be brought for the review of any fact or law in a previous judgment of this Court. To allow that to be done would amount to treating the application as an appeal, and this could not be in view of the provisions of s. 120 of the Constitution of the Federation, 1963."
Section 215 of the 1979 Constitution which is same as section 120 of the 1963 Constitution of the Federation, provides that no appeal shall lie to any other body or person from any determination of the Supreme Court.
And after referring to the unreported case of Patrick J. Osoba v. The Queen F.S.C. 141/1961 decided on May 19, 1961, the Court came to the conclusion that Order 7, rule 29 did not go further than the "slip rule" and that the allegations were not directed towards any clerical mistake either in the judgment of the court under attack, and that since issues of fact and law were raised for determination by the review sought, the remedy if any, did not come within the purview of the "slip rule". Finally, the learned Chief Justice then referred with approval to the statement of Morris, L.J. in Shynne v. Shynne (1955) All E.R. 129 at p. 146.
"Where a Court has decided an issue and the decision of the Court is truly embodied in some judgment or order that has been made effective, then the Court cannot reopen the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellate jurisdiction as may apply."
Section 6(6) (a) of the 1979 Constitution which provides judicial powers vested in the Courts shall extend notwithstanding anything to the contrary in the constitution to all inherent powers and sanctions of a Court of Law does not empower the Court to review its own decision. If it were otherwise, to borrow the words of Elias, in Chief Akin-Olugbade's case supra, "there would be no finality about any judgment of this Court and every affected litigant could bring further appeals as it were, ad infinitum. That is a situation that must not be permitted."
The grounds on which this application was brought showed clearly that the Court was being asked to sit on appeal over its own decision. In other words, that the decision is wrong because of the effect of section 9 of the Chiefs Laws Cap. 21 Laws of Oyo State on the plaintiffs case, that as there was no claim in the nature of order of mandamus or prohibitory injunction the court had no jurisdiction to take the order directing the Government of Oyo State to order an inquiry into the Chieftaincy declaration under the Chiefs Law of Oyo State, which is a power vested in the Executive arm of Oyo State Government. In short, the application sought for an order that the court should sit on appeal over its own judgment. It is my considered view that the inherent jurisdiction of the Court does not extend so far. At p. 86 in Ashiyanbi's case supra, Coker, J.S.C., after referring to the judgment of Lord Denning, M.R. in Varty (Inspector of Taxes v. British South Africa Co. (1965) 1 Ch. 508 at p. 515 state-
"It has not been contended before us however, that the inherent jurisdiction of the Court in this respect would entitle the Court to effect an amendment which would tantamount to re-hearing an order which it intended to make but which it is said it ought to have made."
The Ashiyanbi's case clearly established the principle that the Court "while able to correct a misnomer or misdescription under 'slip rule' will not under that Rule, whether in the exercise of its inherent jurisdiction or by the powers conferred by the Rule of Court, vary a judgment or order which correctly represents what the Court decided nor will it vary the operative and substantive part of its judgment so as to substitute a different form."
In conclusion I will refer to the decision of this Court in Chukwuka v. Ezulike (1986) 5N.W.L.R. 892 at p.899 where Anbiagolu, J.S.C. said-
"The above Order 8 Rule 16 has identical wordings with Order 7 Rule 30 of the 1977 Rules of the Supreme Court under which Chief Iro Ogbu And Ors. v. Chief Ogburu Urum and Anor. (1984) 4 S.C.I. was decided. In Iro Ogbu (supra) this Court (per Obaseki, J.S.C.) at p. 9 stated as follows-
"I am aware that since the order of dismissal was delivered by the court, the judgment has been drawn up, signed and sealed.
Even if it were not drawn up, signed and sealed, the provision of Order 7 rule 30 deprives this Court of any jurisdiction to review the judgment of dismissal for want of prosecution. The inherent jurisdiction of this Court under section 6(6) (a) of the constitution cannot be invoked to save the situation. This Court is therefore unable and incompetent to entertain this application to direct that the appeal be re-entered." ..........
..........
Iro Ogbu (supra) was approved and followed in Sodeinde Brothers (Nig.) Ltd. v. A.C.B. Ltd. (1982) 6 S.C. 137. But Iro Ogbu (supra) was still being pursued angrily by some Counsel with the drawn dagger of an assassin. This Court, in a final bid to settle the issue, in T.A. Yonwuren v. Modern Signs (Nig.) Ltd.; John Enemoh & Anor v. Chief Daniel Onokpite and Ors. and Udealo Nwaopa v. Nwannoli Nwakonobi (1985) 2 S.C. 86 (Consolidated) empanelled a full Court which returned the same verdict that this Court has no jurisdiction inherent or pursuant to the 1977 Supreme Court Rules, to re-enter an appeal dismissed under Order 9 Rule 7 of the 1977 Rules-a fortiori, to re-enter an appeal dismissed under Order 8 Rule 16 of the 1985 Rules. Chief Williams' ingenious argument in the present matter was another way-subtle and penetrating-of resurrecting the old tirade against Iro Ogbu (supra) and Yonwuren (supra)."
For the above reasons, I dismissed the application on 6th April 1987, holding that the Court had not the jurisdiction to entertain the application.
Obaseki, JSC. The applicants were the appellants in the above numbered appeal under which this application was brought. Judgment in the appeal was delivered on the 20th day of March 1987 and from the terms of the judgment, the applicants succeeded in two out of the three claims filed in the High Court. The applicants had in the High Court and the Court of Appeal lost all the three claims. On the determination of the appeal, this Court became functus officio. It appears the applicants were not satisfied with that part of the judgment that dismissed one of the claims and the consequential order for a new inquiry following the successful appeal against the decision of the Court of Appeal in respect of claims 2 and 3.
On the 23rd day of March, 1987, the applicants filed an application praying the court to review the judgment, grant the claim that was dismissed and revoke the consequential order notwithstanding the provisions of Order 8 Rule 16 of the Supreme Court rules 1985. Expressly, the motion prays for an order:
(2) that notwithstanding the provisions of Order 8 Rule 16 of the Supreme Court Rules, 1985, this Honourable Court shall entertain the prayers continued in paragraph (ii) of this motion on Notice;
(2) That the judgments delivered by the Justices of this Honourable Court on the 20th day of March, 1986 be amended to read:
(a) the decision to dismiss the first claim of the plaintiff (i.e. the claim for declaration that by the customary law prevailing in Iwo, the Ogunmakinde Ande Ruling House is the only Ruling House, from which appointment to the Oluwo of Iwo Chieftaincy is to be made) were deleted and that there shall be substituted therefore a decision granting the said declaration;
(b) all references to orders (in the nature of mandatory or prohibitory injunction or of mandamus or otherwise howsoever) not included among the reliefs claimed by the plaintiffs and directed against the said plaintiffs or directed against any of the other parties to the action were deleted from the said judgments;
(3) such further or other orders as this Honourable Court may deem fit to make."
The grounds upon which the application was based numbered eight and were fully set out in the motion paper. Further the applicants gave notice that:
"at the hearing of the application, the plaintiffs/appellants will rely on the Record of Appeal, the Briefs filed by all parties to the appeal and a Brief to be filed in support of the application as soon as practicable hereafter."
The applicants never filed any brief in support of the application. However, the grounds of the application set out in the motion paper contained sufficient material to give an outline of the argument of counsel.
The application was set down for hearing on the 6th day of April, 1987. At the hearing, the Court decided to hear arguments on the issue of jurisdiction of the Court to entertain the application as set out in the motion paper. After hearing arguments of learned Counsel for the parties, I, in concurrence with all my learned brothers who heard the matter, decided that the inherent powers of the Court cannot be invoked to entertain the matters set out in the motion paper and thereupon dismissed the application. I then indicated that I would give my reasons for the Ruling today, 14th day of April, 1987. I now proceed to give them. Before now, I had the privilege of a preview of the Reasons For Ruling just delivered by my learned brother, Coker, J.S.C. They fully accord with my Reasons for dismissing the motion and I hereby adopt them as my own. I will however add the following additional commen