CORAM

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Olukayode Ariwoola, Justice of the Supreme Court of Nigeria

John Inyang Okoro, Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju, Justice of the Supreme Court of Nigeria

Abdu Aboki, Justice of the Supreme Court of Nigeria

Tijjani Abubakar, Justice of the Supreme Court of Nigeria

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PARTIES

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GUARANTY TRUST BANK PLC

APPELLANTS 

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INNOSON NIGERIA LIMITED

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, COURT, JURISDICTION, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

This is a motion on notice brought pursuant to Section 22 of the Supreme Court Act, 1960, Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and under the inherent jurisdiction of this Court, wherein, the Appellant/Applicant seeks for; an order setting aside the ruling of this Honourable Court made on 27th February, 2019 dismissing the Appellant/Applicant’s appeal (appeal No. SC/694/2014) for want of diligent prosecution; and an order restoring same to the cause list of this Honourable Court for hearing and determination on the merit; amongst other reliefs. In response, the Respondent filed a Counter Affidavit and Written Address in opposition, raising preliminary issues, contending that this Court has no jurisdiction to entertain the Applicant’s motion on notice seeking to restore the appeal, on grounds that the order striking out or dismissing a case is a final decision and a bar to re-litigation, abuse of process and that the appeal is incompetent amongst other grounds.

 

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HELD

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Application Allowed

 

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ISSUES

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Whether, based on the facts elicited in the affidavit in support of the appellant/applicant’s motion on notice, this instant application is meritorious and this honourable Court ought to grant same.

Whether mistakes, inadvertence or negligence of counsel should be visited on an innocent litigant.

 

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RATIONES DECIDENDI

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CIRCUMSTANCES WHEN THE SUPREME COURT CAN SET ASIDE ITS JUDGMENT

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“Order 8 Rule 16 of the Supreme Court Rules prohibits re-listing of a matter determined with finality. The said Order 8 Rule 16 reads as follows;

“the Court shall not review any judgment once given and delivered by it, save to correct any clerical mistake 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”

This rule has been interpreted by this Court in seemingly endless judicial decisions. In particular, the rules that govern setting aside of a decision have been carefully set out by this Court in several decisions, in Amalgamated Trustees Ltd V. Associated Discount House Ltd. (2007) LPELR-454 (SC). This Court held as follows:

“In a number of decided authorities of this Court, the general principles in setting aside the judgment of this Court, have been stated and re-stated. In other words, yes, this Court can set aside its judgment, in appropriate cases, when certain things are shown, otherwise, the decision of this Court is final. See the cases of Onwuka & 4 Ors v. Maduka & 4 Ors (2002) 9 SCNJ 113 at 121, (2002) 18 NWLR (Pt. 799) 386; and Okulate & 4 Ors v. Awosanya & 2 Ors (2000) 1 SCNJ 75, (2000) 1 SC 107 at 112-113; (2000) 2 NWLR (Pt. 646) 530. In the case of S. N. Ibe v. Peter Onuora (1996) 12 SCNJ 128, the finality of the decisions of this Court pursuant to Section 215 of the Constitution of the Federal Republic of Nigeria, 1979, was restated. See also the case of Alhaji Alao v. African Continental Bank Ltd. (2000) 9 NWLR (Pt.672) 264 at 283; (2000) 6 SCNJ 63 at 77; (2000) 6 SC (Pt.1) 27 at 36. As a matter of fact, Order 8 Rule 16 of the Supreme Court Rules, 1985 and the three principles enshrined therein, demonstrates unequivocally, a clear prohibition on the interference subsequently with the operative and substantive of a judgment of this Court or any part thereof except under the Slip Rule. It is therefore, now firmly settled that judgments of this Court cannot be reviewed. The Court has no power to overrule, reverse or nullify its previous decisions whether on questions of substantive or procedural law. See the cases of Adefulu & 16 Ors v. Chief Okulaja & 6 Ors (1998) 5 NWLR (Pt.550) 435 at 462; (1998) 4 SCNJ 139 147 and Owunari Long-John & Chief Iboroma & 2 Ors v. Chief Blakk & 2 Ors (1998) 6 NWLR (Pt. 555) 524; at 546; (1998) 5 SCNJ 68 at 86. I note that the Respondent/Applicant in paragraph 4.1.1 of its written address, concedes this firmly established principle and has stated rightly in my view, that the Court has inherent powers to set aside its judgment in a number of circumstances which it also stated and cited and relied on some other decided authorities in respect thereof i.e. Alao v. ACB Ltd. (supra); Chime & Anor v. Ude & Ors (1996) 7 NWLR (Pt. 461) 379 at 414 (it is also reported in (1996) 7 SCNJ 81; Ogbu v. Urum (1981) Vol. 12 NSCC 81 at 88, (1981) 4 SC 1; Skenconsult v. Ukey (1981) Vol. 12 NSCC 1 at 16-17, (1981) 1 SC 6; Chief Igwe & Ors v. Chief Kalu & Ors (2002) 14 NWR (Pt.787) 435 at 435-455 (sic) (it is also reported in (2002) 2 SCNJ 126) and Obimonure v. Erinosho (1966) 1 All NLR 250 at 252-254. I will add some other cases in which this Court has restated the grounds under which it will depart from and overrule its previous decisions or its own judgment set aside. See Samuel Oke v. Lamidi Aiyedun (1986) 4 SC 61, (1986) 2 NWLR (Pt. 23) 548; Ukpe Orewere & Ors v. Rev. Moses Abiegbe & Ors (1973) 1 All NLR (Pt.11) 1 and The Attorney General of the Federation v. Guardian Newspaper Ltd. (1999) 5 SCNJ 324 at 404; (1999) 9 NWLR (Pt. 618) 187 citing several other cases therein. The reason or rationale behind this power was graphically or beautifully stated by Oputa, JSC in the case of Adegoke Motors Ltd v. Dr. Adesanya & Anor (1986) 3 NWLR (Pt. 109) 250 at 274; (1989) 5 SCNJ 80, inter alia, thus; “We are final not because we are infallible; rather we are infallible because we are final, Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned Counsel that any decision of this Court has been given per incuriam, such Counsel should have the boldness and courage to ask that such decision shall be over-ruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to preserve an error.”

The Supreme Court has inherent powers to alter or amend its own orders on the ground that the order or judgment did not present what it had intended to record. In my humble understanding therefore, this Court under Order 8 Rule 16, has the power to set aside in certain circumstances, its decision like any other Court where there are compelling reasons so to do, such as; where any of the parties obtain judgment by fraud or deceit, where such a decision is a nullity or where it is obvious that the Court was misled into giving a decision under a wrong belief. PER T. ABUBAKAR, J.S.C.

 

 

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BASIS ON WHICH THE SUPREME COURT CAN REVIEW ITS JUDGMENT

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“This Court also repeated its position in Alao V. A.C.B Ltd, (2000) LPELR-408 (SC), where this Court held as follows and I quote:

“By Section 215 of the Constitution, 1979, (now Section 235 of the Constitution, 1999) the decision of the Court is final. However, Rules of Court have been made under Section 216 of the 1979 Constitution enabling the Supreme Court to review or vary its judgment in certain circumstances. The Supreme Court has no power to review its judgment once delivered – See Asiyanbi & Ors v. Adeniji (1967) 1 All NLR 82, Minister of Lagos Affairs, Mines & Power & Anor. v. Akin Olugbade & Ors (1974) 1 All NLR (Pt.2) 226, Iro Ogbu & Ors v. Ogburu Urum & Ors (1981) 4SC 1.

After dismissing an appeal under Order 8 Rule 8 it has no power to entertain an application to re-enter the appeal. See Chukwuka & Ors v. Ezulike (1986) 5 NWLR (Pt.45) 892 – I have already reproduced in this judgment the provisions of Order 8 Rule 16, Rules of the Supreme Court, 1985 (as amended) which enable this Court to review its decisions in certain circumstances. This rule is in pari materia with the provisions of Order 7 Rule 29 Federal Supreme Court Rules. In Asiyanbi v. Adeniji (1967) I All NLR 82, where Order 7 Rule 29 Rules of the Supreme Court 1960 was considered, this Court clearly stated that it possesses the power subject to appropriate safeguards where the justice of the case so requires, to correct or amend the terms of its own orders of judgments to effect such variations therein to carry out the meaning intended by the judgment.”

​It is now clear that this Court has the power to review its decision where the judgment was obtained by fraud or the judgment was a nullity such as when the Court was not competent, when the Court was misled into giving judgment under a mistaken belief that the parties have consented to it, when judgment was given without jurisdiction, or where the procedure adopted was such as to deprive the decision or judgment the character of a legitimate adjudication.

See also: Skenconsult Nig. Ltd. V. Ukey (1981) 1 SC 6, Ojiako V. Ogueze (1962)1 ALL NLR 58 1 SCNLR 112, Igwe V. Kalu (2002) 14 NWLR (Pt. 787) 435.-PER T. ABUBAKAR, J.S.C.

 

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WHETHER THE COURT WILL VISIT THE SIN OF THE COURT’S REGISTRY OR COUNSEL ON A LITIGANT

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“I am convinced that at the material time the Applicant’s appeal was inadvertently dismissed by this Court, there was in place a valid and subsisting brief of argument filed by the Applicant. It will be unjust to visit the sin of the Registry on an innocent, vigilant, proactive and diligent litigant. It is obvious from the materials before us that there were errors committed by the Registry of this Court, having failed to bring to the notice of the Panel of Justices that sat in chambers on the 27th day of February, 2019 that the Applicant had indeed filed its brief of argument. This is a case deserving of positive consideration by this Court. It is part of fallibility and the attributable human imperfection in us to quickly admit that indeed there was mistake and the mistake was that of the Registry and not the litigant. God forbid the day the Court will stumble across crass injustice and maintain bold face in the name of maintaining and sustaining our finality in the hierarchy of Courts.

This Court in Cooperative And Commerce Bank Nig. Ltd. Plc V. Attorney General Anambra State & Anor (1992) 8 NWLR (Pt. 261) 528 at 561 held as follows;

“it will be contrary to all principles to allow litigants to suffer for the mistake of the Court Registry. In other words, the Court will not visit the sin of the Court’s Registry on a litigant or his counsel, unless, it was shown that the litigant or his counsel was a party thereto or had full knowledge of the sin or mistake and encouraged or condoned the said act. Therefore, on the authorities, justice, equity, fairness and good conscience, must persuade me, to hold further that this appeal deserves to succeed and it in fact does.”

The law is well settled and we will continue to solidly stand behind the law, equity and good conscience to ensure that we sustain the will and courage to correct errors committed by the Court or its Registry, it is only by so doing we will instill confidence in Court users that nobody is perfect, so doing will also rekindle the hope of the ordinary man in the dignity and impartiality of the Courts. Similarly, on the issue of mistake or inadvertence of counsel, the law is well settled that the sin of counsel, characterized by negligence or inadvertence must not be visited on a litigant, except in extreme circumstances where it is established that the litigant has deliberately or tacitly aided or contributed to the condemnable dereliction on the part of Counsel, in the instant case I find none. See EFP Co. Ltd Vs. NDIC (2007) 9 NWLR (pt. 1039) at 229 and Mains Ventures Ltd V. Petroplast Ind. Ltd (2000) 4 NWLR (pt. 651) 151.

Once a party, such as the Applicant herein has performed his own responsibility and satisfied what he is required to do by law to fulfill in instituting an action, he must not be made to suffer the failure, blunders or omissions of either the registry or his counsel. –PER T. ABUBAKAR, J.S.C.

 

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DUTY OF COURTS NOT VISIT THE SIN OF THE COURT’S REGISTRY OR COUNSEL ON A LITIGANT

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“My Lords, permit me to restate the words of Oputa, JSC in the case of Adegoke Motors Ltd v Dr. Adesanya (1989) 3 NWLR (pt 109) 250 at274; (1989) 5 SCNJ 80 as follows:-

“We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such decision shall be over-ruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to preserve an error.”

It would therefore amount to a miscarriage of justice to allow a litigant, who has performed his own part of responsibility of what is required to have his appeal heard on the merit, to suffer for a mistake committed not by him, but by either the Registrar of the Court or his counsel. See Ede v Mba (2011) LPELR-8234 (SC); ​ Co-operative Commercial Bank Plc v Attorney General Anambra State & Anor (1992) LPELR-875 (SC); (1992) 8 NWLR (pt. 261) 528 at 561; Famfa Oil Ltd v Attorney-General Federation (2003) LPELR-1239 (SC). In the case of Wassah & Ors v Kara & Ors (2014) LPELR-24212 (SC), I said something instructive which I shall reiterate that where there is an obvious mistake by the Court which has led to a miscarriage of justice, I think the Court should be humble enough to accept its mistake and make amends appropriately”. –PER J. I. OKORO, J.S.C.

 

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INSTANCES WHEN A COURT CAN REVIEW ITS JUDGMENT/ORDER

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“It is the settled position of the law that a Court can only review its orders where the judgment was obtained by fraud, where the judgment was a nullity, where the Court mistakenly believed that the parties consented to it, where the Court lacked jurisdiction and where the procedure deprived the Court of its legitimacy”. – PER H. M. OGUNWUMIJU, J.S.C

 

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THE COURT WILL NOT ALLOW A LITIGANT TO SUFFER FROM THE MISTAKE OF ITS REGISTRY

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“In the circumstances of this case, the Applicant had filed its brief of argument well before the appeal was dismissed for failure to do so. The Appellant/Applicant’s brief was deemed filed on 25th June, 2015 while the appeal was dismissed for failure to file same on 27th February, 2019. The failure was patently that of the Registry of this Court as the said brief was never withdrawn nor struck out for incompetence. My Lords, this case calls for intervention as the order of this Court made in Chambers dismissing the appeal for want of diligent prosecution offends the cardinal rule of fair hearing and that order is consequently a nullity. This Court will not allow a litigant to suffer from the mistake of its registry. See: CCB Ltd v. A.G. Anambra & Anor (1992) 5 NWLR Pt. 261 Pg. 528 at 561”. – PER H. M. OGUNWUMIJU, J.S.C

 

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WHETHER THE COURTS WILL ALLOW A LITIGANT TO SUFFER FOR ERRORS, LAPSES, MISTAKES OR ACCIDENTAL SLIPS OR OMISSIONS BY ADMINISTRATIVE OR CLERICAL FUNCTIONS OF THE REGISTRY

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“I have given a glimpse of some of the facts relied upon by the Applicant above, I am of the opinion that once a party, such as the Applicant herein, has performed creditably his own portion of responsibility of what he is required by the law to fulfill, in instituting an action, he should not be made to suffer the failure, blunders, or omissions of the Court Registry. It will be inequitable to do so. By our law and practice, once a prospective party has properly made his claim as required by law and delivered same in the Registry, what is left to be done such as sorting out of the processes, giving them identification numbers for ease of reference; distributing such processes to the various Justices is the domestic responsibility of the Registry. The party has no more say on it except what the Court/Registry requires of him to do. See: Ede & Anor v. Mba & Ors (2011) LPELR 8234 (SC).

Thus, it will be unconscionable and against the interest of justice to penalize such a party for such errors, lapses, mistakes or accidental slips or omissions by administrative or clerical functions of the Registry. – PER A. ABOKI, J.S.C. 

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended)

Supreme Court Act, 1960

Supreme Court Act, Laws of the Federation of Nigeria, 2004

 

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