IBRAHIM SULEIMAN V. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFFC) & ANOR

CORAM

John Inyang Okoro Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Moore Aseimo Abraham Adumein Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar Justice of the Supreme Court of Nigeria

PARTIES

IBRAHIM SULEIMAN

APPELLANTS 

1. ECONOMIC AND FINANCIAL CRIMES COMMISSION (EFFC)

2. DANLADI ITSE

RESPONDENTS 

AREA(S) OF LAW

CONSTITUTIONAL LAW, CRIMINAL PROCEDURE, ADMINISTRATIVE LAW, APPEAL, PRACTICE AND PROCEDURE, ENFORCEMENT OF FUNDAMENTAL RIGHTS, FAIR HEARING

SUMMARY OF FACTS

The case originated from a petition by First Inland Bank against the Appellant (Ibrahim Suleiman) and the 2nd Respondent (Danladi Itse) alleging fraud amounting to N400,700,000 (Four Hundred Million, Seven Hundred Thousand Naira). The Appellant and 2nd Respondent were initially arrested by the Plateau State Police Command and subsequently transferred to the Economic and Financial Crimes Commission (EFCC), the 1st Respondent in this appeal.

The Appellant and 2nd Respondent filed an application for enforcement of their fundamental rights at the Federal High Court. The EFCC was served with the application on July 12, 2007, with a return date of July 19, 2007. On the return date, the EFCC requested an adjournment to file its counter-affidavit. On the next adjourned date (July 24, 2007), the EFCC was absent, but the hearing was adjourned due to a letter from the Commissioner of Police, Plateau State (who was the 1st Respondent at the trial Court).

The EFCC was not notified of the subsequent adjourned date of August 1, 2007. On this date, the trial Court heard the matter and granted the Appellant’s reliefs against the EFCC, including an order for the Appellant’s release. The EFCC later filed an application to set aside the judgment, attaching its proposed counter-affidavit, on the grounds that it was unaware of the hearing date. The trial Court dismissed this application, holding that it was functus officio.

The EFCC appealed to the Court of Appeal, joining only the Appellant and 2nd Respondent as Respondents, omitting the Commissioner of Police, Plateau State and First Inland Bank who were parties at the trial Court. The Appellant raised a preliminary objection to the appeal’s competence based on this omission. The Court of Appeal overruled this objection, allowed the EFCC’s appeal, set aside the trial Court’s decision, and directed that the Appellant be arrested and prosecuted. Dissatisfied, the Appellant appealed to the Supreme Court.

HELD

1. The appeal was dismissed.

2. The Supreme Court affirmed that the Court of Appeal was right to dismiss the Appellant’s preliminary objection regarding the non-joinder of parties, as only parties directly affected by the outcome of the appeal need to be joined.

3. The Court held that the Court of Appeal did not raise issues suo motu in a manner that denied the Appellant fair hearing, as the comments complained about were merely made in the course of analyzing the case.

4. The Supreme Court ruled that the trial Court’s judgment of August 1, 2007 was a default judgment rather than a judgment on the merits, thus the trial judge was not functus officio and retained jurisdiction to set it aside.

5. The Court held that the Court of Appeal’s order for the Appellant’s arrest and prosecution was a valid consequential order flowing from its decision to set aside the trial Court’s judgment.

6. The parties were to bear their respective costs

ISSUES

1. Whether the learned justices of the Court of Appeal were right when they held that there is no substance in the preliminary objection of the Appellant and proceeded to adjudicate on the appeal of the Respondent?

2. Whether the justices of the Court of Appeal denied the Appellant fair hearing when they raised several issues suo motu and resolved same without inviting the parties to address them on the issues so raised?

3. Whether the learned justices of the Court of Appeal were right when they made pronouncements/findings on the merit or otherwise of the substantive judgment of the trial Court when there was no appeal against same before the Court of Appeal?

4. Whether the learned justices of the Court of Appeal were correct when they held that the learned Federal Judge was not functus officio and then proceeded to set aside the decision of the Federal High Court and allowed the appeal?

5. Were the learned justices of the Court of Appeal right when they directed that the Respondent (Appellant herein) be apprehended and prosecuted before the Court of competent jurisdiction having regard to the fact that none of the parties sought the said reliefs?

RATIONES DECIDENDI

NECESSITY OF JOINING PARTIES IN AN APPEAL – DETERMINATION OF NECESSARY PARTIES

The law is firmly settled that the Notice of Appeal is the originating process in appellate proceedings and it is the prerogative of a party initiating a proceeding to invoke the jurisdiction of a Court whether original or appellate to choose the party against whom the jurisdiction of the Court is invoked. It is not the law that a party can join in an action all manner of persons. The only party that must be joined is a party in whose absence the proceeding cannot be effectively adjudicated upon or fairly dealt with having regards to the principle of fair-hearing and natural justice. – Per ABUBAKAR SADIQ UMAR, J.S.C.

SELECTION OF PARTIES IN APPELLATE PROCEEDINGS – CRITERIA FOR DETERMINING PARTIES TO JOIN

In the instant case, the Commissioner of police Plateau State and First Inland Bank were not listed in the Notice of Appeal as persons affected by the appeal. And it is obvious that those parties the 1st Respondent did not join, though are proper parties but they are not necessary parties. No relief is sought against them or for their benefit by the Appellant in the appeal at the lower Court and the parties left out are not complaining. The judgment appealed was given against the 1st Respondent only. – Per ABUBAKAR SADIQ UMAR, J.S.C.

SUA MOTU ISSUES – DISTINCTION BETWEEN SUA MOTU ISSUES AND JUDICIAL ANALYSIS

It is correct as submitted by the learned Appellant’s counsel that the law frowns at the practice of a Court raising suo motu issues and determining the case before it on those issues without affording the parties the opportunity to be heard. Where a Court so acts, an appellate Court will not hesitate to set aside the decision of the Court arising from such infringement. However, it has been repeatedly stated and still needs to be restated that it is not every comment made by a judge that is tantamount to raising a new issue. – Per ABUBAKAR SADIQ UMAR, J.S.C.

ANALYSIS OF CASE BY COURT – DISTINCTION FROM RAISING NEW ISSUES

An issue should not be equated and confused with the factual and legal analysis undertaken by a Court in resolving the case or contention before it. A pronouncement made in the course of analyzing the case before the Court does not amount to raising new issue. Similarly, for issues raised suo motu by a Court to warrant the intervention of an appellate Court on account of occasioning a denial of fair hearing, it must be conclusive that those issues are the ones on which the Court rested its decision .-  Per ABUBAKAR SADIQ UMAR, J.S.C.

FUNCTUS OFFICIO – MEANING AND APPLICATION

In NIWA V. SPDC (NIG) LTD (2008) LPELR-1963(SC) Per TOBI J.S.C. at (PP. 22 PARAS. A) gave consideration to the meaning of a judgment on the merit and opined thus: ‘Merit here means merit of the case. Merit of a case is the substantive consideration to be taken into account in making a decision in contrast to extraneous or technical points especially of procedure. See Garner, A Dictionary of Modern Legal Usage, 2nd edition, page 557. Merit, as a legal term, refers to the strict legal rights of the parties. It is the substance, element or ground of a cause of action or defence.’– Per ABUBAKAR SADIQ UMAR, J.S.C.

JUDGMENT ON THE MERITS – DISTINCTION FROM DEFAULT JUDGMENT

Per ONU, J.S.C. in MOHAMMED V. HUSSEINI (1998) LPELR-1896(SC) (PP. 55 PARAS. A) in drawing a distinction between a judgment on the merit and a default judgment observed ‘A judgment on the merits is one based on legal rights as distinguished from mere matters of procedure or jurisdiction. A judgment on the merits is thus a decision that was rendered on the basis of the evidence led by the parties in proof or disproof of the issues ln controversy between them. Normally, a judgment based solely on some procedural error is not, as a general rule, considered as a judgment on the merits.’ – Per ABUBAKAR SADIQ UMAR, J.S.C.

DEFAULT JUDGMENT – SETTING ASIDE JUDGMENT GIVEN IN ABSENCE OF A PARTY

The first and foremost relevant factor to consider in application to set aside the decision given in the absence of a party, as laid down by this Court in the case of WILLIAMS VS. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) LPELR 3484 SC is the reason for the absence of the party at the proceeding. I am not in doubt that if the trial judge had considered the application on the merit, he would have been bound to grant it as done by the learned justices of the lower Court because lack of service of hearing notice is a logical reason and a veritable ground to set aside the decision of a Court given in the absence of a party. – Per ABUBAKAR SADIQ UMAR, J.S.C.

FUNCTUS OFFICIO – WHEN A COURT BECOMES FUNCTUS OFFICIO

It is trite law that once a Court has delivered judgment on the merit in a case before it, it becomes functus officio and lacks the jurisdiction to review or vary such judgment except to correct accidental slips or clerical mistakes or some error arising from accidental slip or omission in order to give effect to its intention. See Bank of the North Ltd v Intra Bank S. A. (1969) 1 SCNLR 98.– Per JOHN INYANG OKORO, J.S.C.

DEFAULT JUDGMENT – ENTITLEMENT TO SET ASIDE

Howbeit, a Court cannot be functus officio if it gives judgment in default. Default here presupposes that the defendant has failed to follow any of the rules of procedure for which issues are properly joined and determined by the Court. Where a judgment is obtained in default, the defendant is entitled ex debito justitiae to have it set aside. See Williams v Hope Rising Voluntary Fund Society (1982) 1-2 SC 145.– Per JOHN INYANG OKORO, J.S.C.

CONSEQUENTIAL ORDERS – DEFINITION AND SCOPE

A consequential order is one flowing from an order expressly prayed for by a party and granted by the Court in its judgment. It necessarily flows as being incidental to the principal order. In other words, it is an order that has a bearing on the main relief or reliefs claimed by a party and granted by the Court. It arises logically and inevitably by reason of the fact that it is perforce obvious and patently consequent upon the decision given by the Court. Its significance lies in giving effect to the judgment and without it the order expressly claimed and granted by the Court in the judgement may not achieve its ultimate goal. – Per ABUBAKAR SADIQ UMAR, J.S.C.

CONSEQUENTIAL ORDER – MEANING AND APPLICATION

In legal parlance, a consequential order is an order of a Court which flows logically and necessarily from its earlier decision or order. Such an order is made to give effect to the Court’s previous decision, with the intention that the original decision is fully enforceable or implemented. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

NATURE OF CONSEQUENTIAL ORDERS – JUDICIAL INTERPRETATION

And I start by asking myself what a consequential order really means. It is, in my view, an order which flows necessarily, naturally, directly and consequentially from a decision or judgment delivered by a Court in a cause or matter. It arises logically and inevitably by reason of the fact that the order in question is per force obviously and patently consequent upon the decision given by the Court and did not need to be specifically claimed as a distinct or separate head or item of relief. – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C. (quoting Iguh, JSC in Henry O. Awoniyi & 2 Ors. v. The Registered Trustees of the Rosicrucian Order, AMORC (Nigeria) (2000) 10 NWLR (Pt. 676) 522 at 544-545)

COURT OF APPEAL’S POWER TO MAKE CONSEQUENTIAL ORDERS – SCOPE AND LIMITATION

With particular reference to the powers of the Court of Appeal under Section 15 of the Court of Appeal Act, 2004 (formerly Section 16 of the Court of Appeal Act, 1990), vis-a-vis making consequential orders, this Court, per Ogbuagu, JSC, in Hon. Muyiwa Inakoju & 17 Ors. v. Hon. Abraham Adeolu Adeleke & 3 Ors. (2007) 4 NWLR (Pt.1025) 427 at 708 -709, comprehensively held as follows: ‘I will now deal with what is known as consequential order. This is because, the grant of the orders or relies sought by the respondents in the originating summons, were in effect or could also be described as consequential orders. A consequential order, is one giving effect to a judgment or order or it is one directly traceable to or flows from that other judgment or order duly prayed for.'” – Per MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

CASES CITED

STATUTES REFERRED TO

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

2. Court of Appeal Act, 2004

3. Economic and Financial Crimes Commission (Establishment) Act, 2004

4. Fundamental Rights (Enforcement Procedure) Rules

5. Evidence Act, 2011

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