Guardian

In the Court of Appeal,

In the Lagos Judicial Division,

Holden at Lagos,

On Friday, March 22, 2013,

Before their Lordships:

Aminu Adamu Augie,

Justice, Court of Appeal;

Chima Centus Nweze, Justice, Court of Appeal;

Chinwe Eugenia Iyizoba, Justice, Court of Appeal;

CA/L/400/2009

Between

Professor Olugbemiro Jegede (defendant/appellant)

and

Mufutau Bamidele Akande (claimant/respondent).

HE argued that the decision appealed against was a final decision. As such, by the provision of Section 241 (1) (a) 1999 Constitution of the Federal Republic of Nigeria (as amended) no leave was not required to appeal, Independent Newspaper Limited v Idiong (2011) 46 WRN 99, 109.

In reply to the respondent’s arguments with respect to issues one, counsel for the appellant submitted that the objection was designed to terminate the appeal in limine.    He noted that since the preliminary objection was not argued in the alternative, the respondent could not be heard to raise issues number one and two for determination. He maintained that the respondent ought to swim or sink with the preliminary objection. With an objection to terminate the appeal prematurely, the respondent could not, at the same time and in the same proceeding, be given breath and life to the same appeal. Parties are forbidden from blowing hot and cold at the same issue.

By ways of preliminary remarks, we observe that courts look with askance at the approach, which the respondent/objector adopted in this appeal. Counsel, surreptitiously grafted his so-called notice of preliminary objection into the respondent’s brief of argument without more. This is not in consonance with the tenor and intendment of Order 10 Rule 1 of the Rules of this Court. Under this rule, any respondent who intends to challenge an appeal shall do so by filing a notice of preliminary objection.

The practice, which has evolved over time is that such a respondent is often permitted the indulgence of incorporating the said objection in the brief of argument. The courts have, however, taken the position that, at the hearing of the appeal, the respondent must seek and obtain leave to move the said preliminary objection before the adoption of briefs of argument. Where he fails to do so, the objection would be deemed abandoned; Ajide v Kelani (1985) 3 NWLR (pt 12) 248.

In this appeal, no such notice was filed. The objection, as noted above, was surreptitiously grafted into the respondent’s brief. Counsel for the respondent did not seek leave to deal with the said objection before the appellant’s counsel adopted his brief. That means that no leave was sought with regard to the objection before the hearing of the appeal. The said objection should, ordinarily therefore, be discountenanced.

We find no merit in the preliminary objection. Accordingly, we hereby enter an order dismissing it. We now turn to the main appeal.

In the determination of this appeal, the two issues, which the appellant formulated would be taken together. In the first place, we accept the appellant’s submission that as, a general proposition, once a court has given a final decision on a matter placed before it, it becomes functus officio. The only way of retrieving or correcting any errors is by appeal, Nigeria Army v Iyela (2009) 4 WRN 1, 18-20. As such, the court would ordinarily have no authority to review or vary the said decision.

As corollary to this proposition, it cannot be gainsaid that a judge can correct mistakes during the trial but before judgment. However, before correcting mistakes at that stage, the judge is advised to draw the attention of counsel on both sides to the mistakes, omission or clerical error. Once this is done, the judge is competent to correct the mistake etc, Emodi v Kwento (1996) 2 SCNJ 134, 406.

Now, from our perusal of the records of February 9, 2009, we are satisfied that none of the parties applied either for the lower court’s exercise of its powers under the slip rule or under its inherent jurisdiction. As rightly pointed out by the appellant’s counsel, the court suo motu recalled the matter. The second proceeding was conducted on February 2, 2009.

Now, in this case, counsel has urged this court to restore the order dismissing the suit. In the first place, we entirely agree with the submission of the appellant’s counsel that the lower court was wrong to have taken the matter suo motu. As shown above, the exercise of right either under the slip rule or under the inherent jurisdiction of the court is always on the application of one of the parties, Ogunsola v Nicon (supra); Bola v Latunde, Ogunpa; St James’s Church (supra); Shuaib v N.A.B (supra); WAB ltd v Savannah Ventures Ltd (supra).

To the extent that the court proceeded suo motu to conduct a second proceeding, we agree that the lower court was wrong, State v Oladimeji (2003) 14 NWLR (pt 839) 74-75; Sasona v Ajayi (2004) 14 NWLR (pt 894) 527, 547; Araka v Ejeagwu (1999) 4 NWLR (pt 185) 830, 848. To complicate its error, the court even purported to exercise power to reverse itself. That was a clear usurpation of the exclusive prerogative of the appellate court.

In our view, the lower court arrived at the correct conclusion employing the wrong procedure. As noted earlier, a court is not permitted to raise an issue suo motu and resolve it without hearing from the parties, State v Oladimeji 9supra); Osasona v Ajayi (supra); Araka v Ejeagwu (supra).   Thus, we take the view that the said proceeding of February 9, 2009, conducted without the input of the parties was wrong. However, there is caveat here.

In this case, we are not in doubt, from the court’s finding that the Lagos High Court had no jurisdiction, that the proper order in the circumstance should have been an order striking out the suit, Oloriode v Oyebi, Inakoju & Ors v Adeleke & Ors (supra); Dim v A-G of the Federation (supra). Thus, it was a situation that could have been remedied in the exercise of the lower court’s inherent jurisdiction upon application by one of the parties, Bola v Latunde, Ogunpa; St James Church; Shuaib v N.A.B (supra); WAB ltd v Savannah Ventures Ltd (supra).

However, the court usurped the role of the parties. In the circumstance, the question is whether it would serve the interest of justice to restore the first order dismissing the suit for want of jurisdiction. Clearly, such an approach would not wreak havoc on the settled jurisprudence of want of jurisdiction, Oloriode v Oyebi. Thus, notwithstanding error of the lower court, we take the view that this court has the authority to do so the needful in the circumstance, that is, to enter an order striking out suit.

Against this background, we hold that the appeal succeeds in part. We hereby set aside the second proceeding of February 9, 2009 conducted suo motu. However, we do not agree with the appellant’s counsel that the suit should be dismissed. Having held that it had no jurisdiction, the consequential order should have been an order striking out the suit for want of jurisdiction. Accordingly, we enter an order striking out the suit, Ovenseri v Osagiede.