CORAM

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AMINA ADAMU AUGIE     JUSTICE COURT OF APPEAL

SIDI DAUDA BAGE     JUSTICE COURT OF APPEAL

JAMILU YAMMAMA TUKUR     JUSTICE COURT OF APPEAL

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PARTIES

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MRS GANIAT YETUNDE ELIASMR. OLUSOLA ELIAS APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Applicants filed an application at the Court of Appeal praying the court to review and/or vary and/or annul part of the judgement delivered by it to show that Mr. E. Nwosu held the brief of Dr. Charles Mekwunye and adopted the Appellant’s brief of Argument; to delete remarks made by the court against their counsel and show that Dr. Charles Mekwunye had appeared on the day judgment was delivered. The application was brought on the grounds that his lordship stated that the Appellants’ counsel was not in court to adopt his brief which was consequently deemed as argued by the court, that his lordship made some unfavourable remarks as to the professionalism of the 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).

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HELD

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Appeal Allowed

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ISSUES

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Nil

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RATIONES DECIDENDI

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APPEAL – BASIS OF AN APPEAL

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“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.” PER A. A. AUGIE, J.C.A<foo< p=””></foo<>

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DETERMINATION OF A CASE – METHOD OF DETERMINING A CASE

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“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).” PER A. A. AUGIE, J.C.A<foo< p=””></foo<>

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JUDGMENT OF COURT – WHETHER A COURT CAN REVIEW ITS JUDGMENT ONCE DELIVERED

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“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”.
– PER A. A. AUGIE, J.C.A<foo< p=””></foo<>

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DECISION OF COURT-STATUS OF A COURT AFTER DELIVERY OF ITS DECISION

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“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) 3l9, 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.” PER A. A. AUGIE, J.C.A<foo< p=””></foo<>

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SETTING ASIDE OF A JUDGMENT -CIRCUMSTANCES WHEN A COURT CAN VARY OR SET ASIDE IT’S JUDGMENT

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“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).” PER A. A. AUGIE, J.C.A<foo< p=””></foo<>

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AFFIDAVIT – WHETHER AN AFFIDAVIT SHOULD CONTAIN EXTRANEOUS MATTER

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“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) 8 NWLR (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”.
– PER A. A. AUGIE, J.C.A<foo< p=””></foo<>

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)Court of Appeal RulesElectoral ActEvidence Act 2011Supreme Court Rules, 1985

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