Court name
Court of Appeal
Case number
L 873 of 2014

Elias v Ecobank Nigeria Plc (L 873 of 2014) [2016] NGCA 62 (07 April 2016);

Law report citations
Media neutral citation
[2016] NGCA 62
Headnote and holding:

The court considered an application in a matter that dealt with a judgment that omitted counsel’s name. The court was asked to review and/or vary and/or annulling part of the Judgment to reflect the change. The court had the inherent power to correct a slip in its judgment. However, the slip rule can never be used by a party to seek clarity over a judgment but only correct minor errors.

Where counsel does appear and argue for the appellant, their names should not appear on the judgment. Further, only the names of counsel and not the parties are listed on the judgment. Once a court has delivered its decision on a matter, it ceases to be seized of the cases (functus officio), and it cannot re-open it for any purpose whatsoever except in appropriate and exceptional cases such as when judgment

(a) was obtained by fraud or deceit;

(b) was a nullity;

(c) was given under a mistaken belief that the parties consented to it;

(d) 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) was rendered with fundamental irregularity.

A court can however review a judgment to give effect to its meaning, correct clerical errors or accidental slips or omissions. 
The court rejected the application to review or vary the judgment because it did not meet the criteria above but permitted the application to delete phrases that it was made in the absence of counsel and deleted reference to parties from appearances.
 

 
 
In the Court of Appeal
Holden at Lagos

 

Between

Appellant

MRS GANIAT YETUNDE ELIAS
MR. OLUSOLA ELIAS

and

Respondent

ECOBANK NIGERIA PLC

 

Judgement

HON. JUSTICE AMINA ADAMU AUGIE: This Court (per Ikyegh, JCA, lyizoba, JCA, and Obaseki-Adejumo, JCA) delivered its Judgment in this Appeal No. CA/L/873/2013 on 28/10/2015. 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. [2014] LPELR-22221 (SC). This court Per Oredola JCA, in ORISAKWE & SONS L TD. & ANOR v. AFRIBANKPLC. [2012]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. The Grounds for the Application are-

a. On 28th October 2015, the Judgment in this Appeal was read by Hon. Justice A.O. Obaseki-Adejumo (his Lordship) in open Court.
b. [Their] Counsel, Dr. Charles Mekwunye was present in Court on that said day.
c. Whilst reading the said Judgment, Dr. Charles Mekwunye observed that surprisingly his Lordship stated that the Appellants' Counsel was not in Court on 29th September, 2015 to adopt his brief.
d His Lordship stated further that as a consequence, the Court had to exercise its powers under Order 18 Rules 9(4) of the Court of Appeal Rules, 2011 and consequently deemed the Appellant's brief as argued in his absence.
e. From the Certified True Copy (CTC) of the records of proceedings of the said 29th September, 2015, obtained by the Appellant's Counsel, it is clear that Mr. E Nwonu of Counsel, held the brief of Dr. Charles Mekwunye and accordingly announced his appearance before adopting the Appellants' brief
f. It was further observed by Dr. Charles Mekwunye that his Lordship made unfavourable remarks as to the professionalism of Appellants' Counsel without giving him any opportunity to be heard and / or to defend his actions contrary to Section 36 of the 1999 Constitution (as amended).
g. The implication of the passage of the Judgment sought to be deleted is that Appellant's Counsel did not treat the court with respect, honesty and mutual courtesy
h. It will be in the interest of justice to grant this Application as the Respondent will not be jeopardized in any way.

The Application is supported by an 11-paragraph Affidavit and 3 Exhibits - Copy of the Judgment [Exhibit A]; CTC of Record of the Proceedings on 29/9/2015 [Exhibit B]; and the Counsel List of 28/10/2015 [Exhibit C]. The said Affidavit contains more or less the same facts set out as the Grounds of the Application, however, the Deponent, one Steven Olasite, Legal Practitioner in the law firm of Charles Mekwuye & Co, added that -

5. I was further informed by Dr. Charles Mekwunye at the same time, place and under same circumstances as aforementioned, and I verily believe him, that:
a. Furthermore, he observed that his Lordship made unfavourable remarks as to the Appellants' Counsel professionalism without giving him any opportunity to be heard and/or to defend his actions contrary to Section 36 of the 1999 Constitution (as amended);
b. It appears there has been some accidental slip and/or omission in the said Judgment which requires that part of the Judgment in this Appeal be varied and /or reviewed and/or annulled.
6. This Honourable Court has jurisdiction to declare its decision part of its decision which is a nullity, a nullity.
7. I was further informed by Dr. Charles Mekwunye at the same time, place and under same circumstances as aforementioned, and I verily believe him, that:
a. He was in Court on 28/10/2015 when the Judgment was delivered;

b. Again, this fact was not recorded in the Judgment as on page 28 of the Judgment, it was recorded under Appearances that "None for Appellants."
c. 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." Also, in the Supreme Court case of ADEYEMI-BERO V. LAGOS STATE DEVELOPMENT PROPERTY CORPORATION & ANOR. (2012) LPELR-20615(SC), pages 83-84, paras. G-C, THE Court held that; ...it is not the law that a Court cannot, in certain circumstances set aside its own Judgment. Respondents' desire by their suit No. 249/97is to have Alabi J, set aside the null and void judgment of llori J, in Suit No. M/415/95, which the trial Court, on the authorities is empowered to do. The principle is that a person affected by the Judgment of a Court which is a nullity is entitled to have the very Court set it aside Ex debito justitiae. The Court in its inherent jurisdiction has the power to set aside its own Judgment or Order made without jurisdiction or if same has been fraudulently obtained. In such circumstance, an appeal for the purpose of having the null judgment or order cannot be said to be necessary. See Bello v. /NEC & 2 Ors. (2010) 8 NWLR (Pt. 1196) 342; Odofm v. Olabanji (1996) 3 NWLR (Pt. 435) 126 and Ogola v. Ogolo NSCQLR (2006) (Vol. 25)432."

8. Silence is not punishable under any law in Nigeria.
9. I know as a fact that it will be in the interest of justice to grant this Application as the Respondent will not be jeopardized in any way.
10. The failure of the Hon. Court to grant this Application will impinge on the Professional integrity, competence and reputation of the Appellants' Counsel and impinge on the Appellants' right to fair hearing.

In opposing the Application, Respondent filed a 9-paragraph Counter-Affidavit deposed to by one Lloyd Okoreafor, who averred as follows -

1. I am the Legal Officer of the Respondent Bank —
2. I am duly authorized to make this Affidavit on behalf of the Respondent
3. I have seen the Affidavit of one Steven Olasite deposed TO IN SUPPORT OF THE Motion on Notice dated and filed on 5 November 2015, in response to which I make this Counter Affidavit.
4. In response to the facts contained in Paragraphs 5(a), 5(b), 7(c) and 8 of the Affidavit in support of the Motion on Notice, I know of a fact that the learned Justices of this Honourable Court's remarks in the Judgment delivered in this Appeal on 28th October 2015 on the Appellant's Counsel's unfair conduct is not an accidental slip and/or omission.
5 In further response to the facts deposed to in Paragraphs 5(a), 5(b), 7(c) and 8 of the said Affidavit in support of the Motion on Notice, I know of a fact the learned Justices of the Court of Appeal's remark in the Judgment do not raise any breach of fundamental right to fair hearing. The unruly and unconscionable conduct of the Appellants were one of the issues raised and argued by the Parties in this Appeal at paragraphs 3.08, 3.09 and 3.10 of Respondent's Brief of argument dated and filed on 15 April 2015 and the Appellant's Counsel had the opportunity to defend the Appellant and himself in his Reply brief dated and filed on 25 May 2015.
6. In response to paragraph 6 of the said Affidavit in support of the Motion on Notice, I reasonably believe that the learned Justices' remarks in the aforesaid judgment is not a nullity and does not require that part of judgment to be varied and/or reviewed and/or annulled by this Court except on Appeal.
7. In response to paragraph 7 (b) of the said affidavit in support of the Motion on Notice, I have honest and reasonable belief that by this Honourable Court's practice it is the names of Counsel that adopted their brief of argument on the date slated for hearing of an Appeal that are contained in the judgment and not names of Counsel that appear on the date of judgment.
4. The Respondent would be highly prejudiced by the grant of this Application, as it would continue to defend this proceeding after Judgment has been delivered.

The Applicants also filed "Appellants' List of Authorities", which reads –

" TAKE NOTICE that the Appellants shall rely on the following authorities;
1. BARRISTER ORIKER JEV & ORS. V. IYORTOM & ORS. (2015) NWLR (PT. 1483) 484, where the Supreme Court held as follows -" The Supreme Court possesses inherent power to set aside its judgment in appropriate or deserving cases. Such cases are 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;
(b) When the Judgment is a nullity such as when the Court itself was not competent and a person affected by an order of Court which can property be described as a nullity is entitled ex debito justitiatiae to have it set aside;
(c) When it is obvious that the Court was misled into giving a Judgment under a mistaken belief that the Parties consented to it;
(d) Where the Judgment was given without jurisdiction; and
(e) Where the procedure adopted is such as to deprive the decision or Judgment of the character of legitimate adjudication.

My Lords, grounds (b), (d), & (e) stated by the Apex Court in the above quotation has direct bearing on the facts of this case and are thus applicable.
Furthermore, the Supreme Court in Jev V. lyortom (supra) held further that;

"In the instant case, the Application was not to review or set aside the operative or substantive part of the Judgment of the Supreme Court of 30th May, 2014 dismissing the Appellants' appeal and ordering the 1st appellant to vacate his seat in the House of Representatives: The application was simply to review the consequential order directing the 2nd respondent to conduct another election by substituting the order with an order to issue the 1st respondent a certificate of return to be sworn in as a member of the House of Representatives representing Buruku Federal Constituency of Benue State".

Also, at page 514, paras. C-E the Court held, per Onnoghen JSC, that-

'In the instant case, I had stated earlier that the Application does not affect the substantive decision of this Court which is that the appeal was dismissed. The application therefore does not seek a reversal of that decision. It is obviously intended to give effect to the meaning and/or intention of the court by the appropriate consequential order. After dismissing the appeal, the court ordered the 1st appellant to vacate the seat in the Federal House of Representative immediately. It follows therefore that the proper consequential order which meets the justice of this case in the circumstances one which directs INEC to issue a certificate of return to the 1st respondent / applicant forthwith and that the applicant be sworn in as a member of the Federal House of Representatives forthwith".

That said, the Supreme Court went further again to state at page 520 that –

'The Applicant has been left in limbo since the Judgment of this Court delivered on 30h May, 2014. The consequential order made in the said Judgment was not one of the issues agitated in the Appeal and since it has left the Respondent without a remedy, the principle of ubi jus, ibi remedium should be invoked in favour of the Respondent/Applicant by virtue of Order 8 rule 16 Supreme Court Rules.'

Order 8 rule 16 of the Supreme Court Rules 1985 is in pari material with Order 19 Rule 4 of the Court of Appeal Rules, and should be interpreted the same way.

The Court, per Galadima JSC, - - in corroborating this point held that -

"The dictum of Denning LJ in the English case of Packer v. Packer (supra) cited by the learned silk says it all at p. 129 of the report -

'If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on and that will be bad for both'

Here in this court we have done it and we shall continue to do it. We are not infallible because we are human. In other words, 'to err is human.' In deserving cases and in the interest of justice this Court shall continue to exercise its restricted powers under Order 8 rule 16 of Rules of this Court".

2. ISIJOLA V. EKITISTA TE MICRO CREDIT AGENCY (2014) LPELR-22708 (CA),
3. OYEYIPO & ANOR. V. OYINLOYE(1987) LPELR-2883 (SC) pages16-17,
4. BELLO V. INEC & ANOR. (2010) LPELR-767(SC),page 78paras D-F--
5. ADEYEMI-BERO V. LAGOS STATE DEV. PROPERTY CORPORATION & ANOR. (2012)LPELR-201615(SC), where the Supreme Court held that:

"...It is not the law that a Court cannot, in certain circumstances set aside its own judgment. Respondents' desire by their suit No. 247/97 is to have Alabi J„ set aside the null and void judgment of lLori J, in suit No. M/415/ 95 which the trial court, on the authorities is empowered to do. The principle is that a person affected by the judgment of a court set it aside Ex debito justitiae. The court in its inherent jurisdiction has the power to set aside its own judgment or order made without jurisdiction or if same has been fraudulently obtained. In such circumstance, an appeal for the purpose of having the null judgment or order cannot be said to be necessary. - -

6. TSOKWA MOTORS (NIG.) LTD V. UBA (2008) ALL FWLR (PT.403) 1240 AT 1255, paras. A-B (SC), where the Supreme Court held, per Musdapher  JSC that;
"A denial of fair hearing is a fundamental issue and where such exists, the entire proceedings will be declared a nullity."
7. FINNI V. IMADE (1992) LPELR-1277(SC) where the Supreme Court held thus;
"It is accepted that in our adversary system of the administration of justice, where the judge is at all times expected to play the role of an unbiased umpire, he cannot raise any issues suo motu, and proceed to decide the matter on such issues without hearing the parties."
8. KALU MARK & ANOR. V. GABRIEL EKE (2004) LPELR-1841 (SC), page 24, paras. C-D, where the Supreme Court held thus:
"But, however, if the Judgment is a nullity, the Court which made it can set it aside on a motion suo motu or on an application by any party affected by it - -The law is settled that any court of record including the Supreme Court - - -has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the Court. See Skenconsult (Nig.) Ltd. v. Ukey (supra) - - Such a judgment is a nullity. A person affected by it is therefore entitled ex debito justitiae to have it set aside. The Court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal - -"

Now, the Applicants are urging us to review and/or vary and/or annul part of the Judgment to reflect three things enumerated as Ai. Aii. & Aiii. The first [Ai.], 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.

The third [Aiii.], which is 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. The Applicants, relief All., is overreaching, and same will be struck out.

We now come to relief Alll; the contentious part of this Application, because they are asking us to delete part of our Judgment that has been delivered, which is a bit tricky, and not as easy as they make it out to be. However, before I go into the nitty-gritty of that aspect of this Application, I must point out that paragraph 7 c. of the Applicants' supporting Affidavit offends Section 115 (2) of the Evidence Act, and it has to be struck out.

Section 115 (2) of the Evidence Act 2011 insists that an Affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion. True enough, it is sometimes a problem to discern a particular extraneous matter, however, Uwaifo, JSC, explained as follows in Bamaiyi V. State (2001) 8NWLR(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".

In this case, the first part of the said paragraph 7c, 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.

We are now faced with the vexed question of whether this Court can delete the said remarks of Obaseki-Adejumo, JCA, from the Judgment delivered by this Court on 28/10/2015. The Applicants' contention is that they were unfavourable remarks on the professionalism of their counsel that were made without giving him the opportunity to be heard and/or defend his action, which is contrary to Section 36 of the Constitution.

As I said earlier, this prayer is a bit tricky because 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)

The Application before us is brought pursuant to Section 36 of the 1999 Constitution (as amended); Order 7 rule 1, Order 19 rule 4 of the Court of Appeal Rules, and under the inherent jurisdiction of this Court. The said 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".

The Applicants have filed a Written Address in support of this Application that was prepared by Dr. Charles D. Mekwunye, Ibezim E. Nwonu, Esq., Steven Olasite, Esq., John Ochada, Esq., Onyeka C. Ezoem (Miss) and Abayomi Asorobi, Esq., wherein they submitted that the above rule is in pari materia with Order 8 rule 16 of the Supreme Court Rules, 1985; interpreted by the Supreme Court in Jev & ors V. lyortom & ors (supra). They submitted that grounds (b), (c) & (e) stated by the Supreme Court, which I earlier reproduced, has direct bearing on the facts of this case, and are thus applicable. It is their contention that the said remarks of Obaseki-Adejumo, JCA, in the lead Judgment, were raised suo motu, and has no bearing whatsoever on the resolution of the issues submitted by the Parties to the Court, and it castigated their counsel without giving him opportunity to be heard, contrary to Section 36 of the Constitution.

They further argued that the Application does not seek to vary the "operative or substantive part of the Judgment", which is still intact sans parts being sought to be nullified; and that the gravamen of the decision in Jev's Case (supra), is that where the part sought to be nullified is not the operative or substantive part of a Judgment, a Court has jurisdiction to set aside that part of the Judgment and/or substitute it with another.

The Respondent countered in its own Written Address prepared by Azubuike Okoye, Esq., that the "decision" of this Court on the conduct of the Applicants' counsel is not an accidental slip or a nullity, and was not made without jurisdiction, therefore, the said Judgment cannot be varied or reviewed by this Court except on appeal; and that these "findings" oxe also not mere findings are erroneously contended by the Applicants.

It further submitted, citing Onwuchekwa V. CC B (Nig.) Ltd. & Anor (1999) 5 NWLR (Pt. 603) 409, that once the Court has given Judgment, it becomes functus officio, therefore, an aggrieved party can only appeal, that the only exception is in Order 19 rule 4 of the Rules of this Court, citing Kekere-Ekun V. Owolabi (2010) LPELR-4400(CA);and that this Court lacks the power to review the Judgment of 28/10/2015 except to –

a) Correct errors arising from any accidental slip or omission; or
b) Correct clerical mistake arising from any accidental slip or omission; or
c) Vary the Judgment or order so as to give effect to its meaning or intention.

It further argued that Barrister Jev & ors V. lyortom & ors (supra) relied on by the Applicants is cited out of context, and has no relevance to this Application, citing Admin/.Exec. of the Estate of Gen. S. Abacha V. Eke-Spiff & Ors. (2009) 7NWLR (Pt 1139) 97 SC, and that the only option is for us to decline jurisdiction and dismiss the Application, citing Holborn Nig. Ltd. V. O. C. Chris Ent. Ltd. (2014) LPELR-23972(CA), wherein this Court adopted the observation in Min. of Lagos Affairs, Mines and Power V. Chief Akin-Olugbade (1974) All NLR 745, and held as follows -

" - the Rule envisages only an application for the invocation of the slip rule and it does not enable an application to be brought for the review of any fact or law in a previous Judgment of the Court. To allow that would amount to treating the Application as an appeal".

It had more to say on the substantive issues in the appeal vis-a-vis the issue of fair hearing but it will not be necessary to delve into that issue.

On the arguments so far proffered, the Applicants argued in their Reply to Respondent's Written Address that its contention regarding the applicability of Jev's Case (supra), is a misconception since this Court is not only enjoined to look at the facts in issue but also the issues or ratio established to enable it decide whether a decision of the Supreme Court is binding on it; that the issue in the two cases is whether a Court can set aside and/or nullify its Judgment where part of the Judgment is not the operative or substantive part, and the answer is in the affirmative; and that the said authority is binding on this Court because it deals with the interpretation of Order 8 rule 6 of the Supreme Court Rules, which is in pari materia with Order 19 rule 4 of the Court of Appeal Rules, so the said authority is apt and applicable, and this Court is bound to follow it.

From all indications, both sides appear to be saying the same thing albeit from different perspectives. 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). The Applicants also say that this Court must consider the facts in issue and the issues or ratio established in the matter in determining whether it is bound by a decision of the Supreme Court or not. The only twist is that the Applicants insist that since the portion of the Judgment in this case, which they want deleted, is not an operative or substantive part thereof, this Court is bound to follow the Supreme Court's decision in the case of Jev & ors V. lyortom & ors (supra) which dealt with a similar issue.

In Jev's Case (supra) the Supreme Court had made consequential orders in its Judgment directing the 1st Appellant to vacate a seat in the House of Representatives and that INEC should conduct fresh election into the vacant seat within 3 months with 1st Respondent as a candidate.

The 1st Respondent later filed an Application at the Supreme Court for an order to amend, correct and/or set aside the consequential order on the grounds inter alia that after it delivered its Judgment, his counsel became aware of the Judgment of the Federal High Court in which the provision of Section 141 of the Electoral Act was struck out and nullified; that the Order of the Supreme Court directing that fresh election be held was based on the said annulled provision; and that the said Judgment of the Federal High Court is still extant and has not been set aside.

In unanimously granting the Application, the Supreme Court held that the Application was not challenging the correctness of its Judgment, in which case, it would not have been able to grant same; rather the said Application only sought to set aside the consequential order of the Court to the effect that a fresh election be conducted with other candidates, and the Applicant only sought for the substitution of the said order with issuance of a certificate of return, and to be sworn in as a said Member. Okoro, JSC, who wrote the lead Ruling, explained the rule as follows –

"Courts of law are set up to do substantial justice to parties, who appear before them.  Therefore, where a Court makes an Order in its Judgment, which does not fully represent its meaning and/or intention, the Court is allowed to vary the said Order in order to give effect to the Judgment delivered. There could be a situation where the Court has made a clerical mistake or some error arising from any accidental slip or omission. In such circumstance, the Court is in good position to correct such obvious mistake in order not to enthrone injustice and pain on the affected party.  That is the intendment and purport of Order 8 rule 16 of the Rules of this Court".

The Supreme Court also considered the same Order 8 rule 16 of the Supreme Court Rules, which is in pari materia with Order 19 rule 4 of the Court of Appeal Rules, in its very recent Ruling delivered on 24/2/2016 in Appeal No. SC. 37/2015 - Ejike Oguebego & Anor.V. PDP & 2 Ors.

In that case, the Supreme Court delivered Judgment on 29/1/2016, wherein it set aside our Judgment and made an Order that the Order of the Federal High Court recognizing the "Ejike Oguebego - led executive Committee of PDP still stands until it is set aside by an Order of Court". On 8/2/2016, 2nd Respondent filed an Application "seeking clarification of certain portions of the Judgment it delivered. The same Okoro, JSC, wrote the lead Ruling, wherein he set out that rule, and held as follows –

“In view of the above provisions of the Rules of this Court, can this Court assume jurisdiction to hear the Motion seeking clarification of our Judgment? I do not think so. The Motion is not seeking correction of any clerical mistake or some error arising from any accidental slip or omission. - - Generally this Court has powers to correct its own technical errors or slips of pen. --it must be borne in mind that it is not every slip or error in a Judgment that would be allowed to undermine or derogate from an otherwise well written Judgment - -I have had an overview of the Application sought to be moved by the Applicant and the issues thrown up therein, I am of the view that this Court has no jurisdiction to determine and pronounce upon them as it will have the effect of re-writing the Judgment and in the process making orders, which were not made in the original Judgment.  - - From the issues before us, nothing has been shown to the Court, which is not clear in the Judgment. It is wrong for any party to import into the Judgment issues, which were not ventilated and decided. For instance, the Applicant is seeking clarification whether to issue certificate of return to persons in the list of Ejike Oguebego-led executive committee. This was not pari of our Judgment. Also, I NEC is seeking clarification whether to conduct fresh election into the National Assembly in respect of both Senate and House of Representatives' seats affecting Anambra State. This again, was not part of the Judgment These are matters, where were properly ventilated at the Election Tribunal and Court of Appeal. I am not aware that those matters are on appeal here. Issues relating to seats in the National Assembly were fought, won and lost at the Election Tribunal and lower Court. It cannot be revived here through the back door as this Court has no jurisdiction to hear and determine such matters".

In this case, Obaseki-Adejumo, JCA, who wrote the said lead Judgment, resolved Issues one and two in favour of the Appellants - see page 22 of the Judgment [Exhibit A].   He resolved Issue three in favour of the Respondent and against the Appellants, and went to state as follows

"Before I close the curtain on this case, there is the need to make some remarks, albeit in passing. I have taken judicial notice of the commercial nature of the property involved in this dispute which no doubt is lying in economic waste in view of the pending suit regardless of who will benefit One would have thought that counsel for both parties of the divide would have adopted alternative mode of dispute resolution. - - In relation to the unruly and unconscionable conduct of the Appellants, I must state that an act which interfere and/or tampers with the subject matter of a pendent lite ridicules the court and it should not be overlooked. Self-help is unlawful and should not be encouraged.   This Court has a sanctify that has remains so from time immemorial and no one, no matter the position or status of such person, will be allowed to derail and ridicule the hallowed temple of justice. 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. - - This Court perOredola JCA, in Orisakwe & Sons Ltd. & Anor V. Afribank Plc. [2012] 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".

The Applicants are not saying that the said Judgment of this Court was obtained by fraud or deceit. They are not complaining that this Court was misled into giving the Judgment either. What they are saying is that the Judgment is a nullity; that it was given without jurisdiction; and that the procedure adopted is such as to deprive the Judgment of the character of legitimate adjudication - see Jev & Ors V. lyortom & Ors (supra).

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".

See also N.D.I.C. V. Okem Ent. Ltd. (2004) 10 NWLR (pt 880) 107 SC, where the Supreme Court per Uwaifo, JSC, also held that an appeal is usually against a ratio decidendi and not against an obiter dictum except in cases where an obiter dictum is closely linked with the ratio decidendi so as to be deemed to have radically influenced the ratio decidendi; but even there, the appeal is against the ratio decidendi, and nothing else.

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. Consequently, the said relief Aii, also stands no chance, and is refused. So, the Respondent is right; Jev's case (supra) is not applicable herein.

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.

SIDI DAUDA BAGE :I read in draft the lead ruling of my learned brother, Honourable Justice A. A. Augie (PJ) JCA. I agree with the ruling in its entirety, and do not have anything useful to add. I abide by the order as to costs contained in the lead ruling.

JAMIIU YAMMAMA TUKUR JCA: I have read before now the lead ruling just delivered by learned brother AMINA ADAMU AUGIE JCA and I adopt the ruling as mine with nothing useful to add.

Counsel

Dr. Charles Mekwunye with John Ochada, Esq. For the Applicants
A. N. Okoye, Esq., for the Respondent