CORAM

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HON. JUSTICE A. M. TALBA JCA

HON. JUSTICE A. M. LAMIDO JCA

HON. JUSTICE M. DANJUMA JCA

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PARTIES

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1. YALWA SA’IDU

2. HURAIRA SA’IDU

3. LARAI SA’IDU

4. SAFIYA SA’IDU

5. INDO SA’IDU

6. LADIYO SA’IDU

7. HAFSATU SA’IDU

APPELLANTS 

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1. SHEHU DANO ABUBAKAR

2. MUSA ABUBAKAR

3. NADABO ABUBAKAR

4. AYUBA ABUBAKAR

5. INUWA ABUBAKAR

6. HALADU ABUBAKAR

7. YAHUZA ABUBAKAR

8. SALEH ABUBAKAR

9. MUSTAPHA ABUBAKAR

10. SHUAIBU BALA

11. SULE BALA

12. TALLE BALA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTION, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellants filed an appeal before the lower court against the decision of the Upper Sharia Court Ikara. At the said lower court, the Respondents counsel challenged the competence of the appeal on the grounds that same was filed out of time and no leave was sought for extension of time. The lower court dismissed the Appellant’s appeal for the reason that the appeal was not filed within time and leave for extension of time was not sought.

To retrace their steps, the Appellants counsel filed an application for the relist of the appeal which application was accompanied by a motion for extension of time supported by an affidavit showing cogent reasons for the delay and the grounds of appeal before the lower court. On the day slated for hearing the application, the Respondents’ cousel drew the attention of the lower court orally to the fact that the application brought by the Appellants amounts to an abuse of court process as the lower court had, by its ruling on the failure of the Appellants to seek leave of Court become functus officio and therefore cannot relist the appeal. The lower court unhesitatingly overruled and refused the Appellant’s application for relist on the ground that the prior dismissal has left the Appellants with no other option than to appeal to the Court of Appeal and that if the application is granted, the lower court will be tantamount to sitting on appeal over a matter which it has decided, as such has become functus officio.

Dissatisfied with that decision, the Appellants have now appealed to this court.

 

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HELD

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Appeal allowed

 

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ISSUES

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1 Whether Ground one of the extant Notice of Appeal and the issue distilled therefrom as well as the submissions thereon are not liable to be struck out same having not arisen from the ruling of the lower court delivered on 08/09/2021?

2 Whether the lower court was right in holding that the Appellants’ application for relisting their appeal amounts to an abuse of court process as it has become functus officio to relist the matter?

3 Whether the dismissal of the Appellants’ appeal for wanting in seeking leave amount to a dismissal on the merit living (sic) the Appellants with no other option than to appeal to the Court of Appeal?

4 Whether the refusal of the lower court to relist the Appellants’ appeal amounts to taken (sic) away of their constitutionally guaranteed right of appeal?

 

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RATIONES DECIDENDI

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DOCUMENT – WHETHER THE CONTENT OF A DOCUMENT CAN BE VARIED BY ORAL EVIDENCE

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It is trite law that the content of a document cannot be varied by an oral evidence. See the case of A. A. MACAULAY V. MERCHANT BANK LIMITED (1990) 4 NWLR PT. 144 283 at 310-311.

Similarly, in the case of N.I.D.B. VS. OLALOMI INDUSTRIES LTD (2002) 5 NWLR (Pt. 761) 532 ratio 7, it was held that:

“A document speaks for itself, oral testimony is inadmissible to vary, add or take away from the content of a document”. – Per Mohammed Danjuma, JCA

 

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DISMISSAL – WHERE A DISMISSAL ORDER IS MADE FOLLOWING A CASE NOT HEARD ON THE MERIT – WHERE A MATTER IS STRUCK OUT FROM THE CAUSE LIST

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In any case, even if dismissal order is made following a case not heard on the merit, it remains a mere striking out order and can be relisted or refiled at anytime subject to the leave of the court.

In such a case, the Applicant still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action just like the way the Appellants did before the lower court by re-filing the appeal after curing the defect of not seeking the leave of the lower court in the first place coupled by application for extension of time. See the case of NWAOHA VS. C.O.P (2018) LPELR044214 (SC) Per OLUKAYODE ARIWOOLA, JSC (PP. 16-17, Paras. E-A).

It remains the general principle of law that, if a matter is struck out from the cause list, an applicant is invariably at liberty to revive it at any time. See the case of LAFFERI (NIG) LTD & ANOR VS. NAL MERCHANT BANK PLC & ANOR (2015) LPELR-24726 (SC) Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC (PP. 30-31, Paras. F-C). – Per Mohammed Danjuma, JCA

 

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FUNCTUS OFFICIO – WHEN A COURT IS DEEMED TO BE FUNCTUS OFFICIO – MEANING OF FUNCTUS OFFICIO

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By law, a court only becomes functus officio where the merit of the case has been decided.

Otherwise stated, a court becomes functus officio when a court has given a final decision and necessary consequential orders in a matter presented before it for adjudication has been concluded. See the case of ANYAGHAM VS. FBN PLC (2021) LPELR-55905 (CA) Per AMINA AUDI WAMBAI, JCA, (PP. 36-37, Paras. A-E).

This means that once a court has declined a matter before it, that court has no power or authority over the matter and it lacks competence or jurisdiction to review or revisits its own decision and/or to reopen the said case for further deliberations. The same court cannot assume status over its decision except under exceptional circumstances and only where there is statutory provision in that aspect. – Per Mohammed Danjuma, JCA

 

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FUNCTUS OFFICIO – WHERE A COURT BECOMES FUNCTUS OFFICIO

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It is only when a case is concluded by rendering of a judgment or a final order that the said court ceases to have jurisdiction as it has thereby become fucntus officio. See the case of OYEBOKUN & ORS VS. GOV. ONDO STATE & ORS (2015) LPELR-25676 (CA). – Per Mohammed Danjuma, JCA

 

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STRIKING OUT – THE EFFECTS OF STRIKING OUT A MATTER – WHETHER A MATTER IS DISMISSED WITHOUT HEARING ON THE MERIT

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In the case of NWAOHA VS. C.O.P (2018) LPELR-4424 (SC), it was held Per ARIWOOLA, JSC (now Chief Justice) PP. 16-17, Paras. E-A, thus:

“When an application or an appeal, as the case may be, is found to be incompetent for any reason, it cannot be dismissed, not having proceeded to hearing on the merits. At best, it will be struck out. Otherwise, the order of dismissal will be taken as a striking out order liable to be set aside to allow for relisting or fresh application on same subject. This is the justice of the matter and fairness to the parties concerned”.

Thus, the correct position of the law as enunciated in plethora of other decided cases is that when an order is made in respect of an application not heard on the merit, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which was not based on the merits, such an order is still considered in law as mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist the matter. A point must be made that while the matter is discontinued as from the date, it is still alive and kept in the court’s general cause list and therefore can be brought back to the hearing cause list when an application to relist has been granted. In such a situation, the Applicant has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action.

In the case of PANALPINA WORLD TRANSPORT (NIG) LTD V. J. B OLANDEEN INTERNATIONAL & ORS (2010) LPELR-2902 (SC), it was held:

“At this juncture, it is imperative, that I amplify on the position of the law as supported by the Rules. When an order of court is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such an order is still considered in a law a mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist. The simple explanation is that while the matter is discontinued as from that date, it is still alive and kept in the court’s general cause list and can be brought back to the hearing cause list when an application to relist has been granted. in such case, the Plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list- as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago. Alor V. Ngene (2007) All FWLR Pt. 362 Pg. 1836; Waterline Nigeria Limited V. Fawe Services Limited FWLR Pt. 163 Pg. 88”.

Per ADEKEYE, JSC (PP. 23-24, Paras. A-B) – Per Mohammed Danjuma, JCA

 

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APPEAL – THE CONSTITUTIONAL GUARANTEE OF THE RIGHT TO APPEAL

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The right to appeal the decision of a court is constitutionally guaranteed. And Section 262 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has conferred on the Sharia Court of Appeal an appellate and supervisory jurisdiction in civil proceedings involving questions of Islamic Personal Law as itemized in sub-section 2 of the said section. The law has made it a procedure to be followed by any aggrieved party to Sharia Court of Appeal in respect of any interlocutory ruling or final judgment for review.

Consequently, it is wrong for the said court to deny the Appellants their constitutionally guaranteed right of appeal by refusing their application seeking to relist their appeal. It is of course elementary and fundamental proposition that a right conferred by the constitution cannot be taken away by any other provision except by the constitution itself. In the case of OBIKOYA V. WEMA BANK LTD (1989) LPELR-2176 (SC), it was held that:

“A right to appeal is a very important constitutional right and its exercise ought not to be unduly fettered”. Per OPUTA, JSC (P. 38, Paras. C-D). – Per Mohammed Danjuma, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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

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