(2017) LPELR-43729(CA)

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1 OJONG v. NTUI & ORS CITATION: In the Court of Appeal In the Calabar Judicial Division Holden at Calabar ON WEDNESDAY, 25TH OCTOBER, 2017 Suit No: CA/C/17/2014 CHIOMA EGONDU NWOSU-IHEME STEPHEN JONAH ADAH Before Their Lordships: JOSEPH OLUBUNMI KAYODE OYEWOLE Between H.R.H. OKIM PATRICK MANYO OJONG (Substituted by Order of Court on 29th September, 2016) And 1. CHIEF OGAR NTUI 2. NTUFAM ISONG AKARE 3. NTUFAM CHRISTOPHER ODU AMBA (For and on behalf of Agbokim Mgbabor Community) RATIO DECIDENDI 1. APPEAL - ISSUE(S) FOR DETERMINATION: Essence of formulation of issues for determination Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) - Respondent(s) "It is now settled that the purpose for distilling issues for determination is to narrow the issues in the ground of appeal so filed in the interest of accuracy, clarity and brevity. See ANIE VS. UZORKA (1993) NWLR (PT. 309)."Per ADAH, J.C.A. (P. 5, Paras. E-F) - read in context

2 2. JUDGMENT AND ORDER - REVIEW OF JUDGMENT: Whether a Court can review its own judgment or judgment of a Court of coordinate jurisdiction "The complaint of the Appellant is clearly that the Lower Court was in error for setting aside the judgment in Suit No. HM/93/98 without any application from any of the parties before the Court to that effect. The parties have cited some authorities which established the fact that generally a Court cannot sit on appeal over its own judgment or review the judgment of a Court of coordinate jurisdiction. This general principle of law was explained in the case of N.I.M.B. LTD. VS. U.B.N. LTD. (2004) 12 NWLR (PT. 888) 599, 621 where the Supreme Court per Pats-Acholonu, JSC held as follows: "The theory of justice to which we adhere rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of coordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of law is that just as stare decisis exercise a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of coordinate jurisdiction do not sit on appeals on each other, attracts respect for the law." See also the earlier Supreme Court decision in WITT & BUSCH LTD. VS. DALE POWER SYSTEMS PLC (2007) 17 NWLR (PT. 1062) 1. In our legal system, the doctrine of stare decisis holds sway. It is an essential foundation upon which certainty of the law is guaranteed. The Court does not ordinarily depart from its previous decisions. This is more apt in a situation where the decision is of the same Court and given by a judge of the Court. The rational is that by Section 270(1) under our 1999 Constitution (as amended), there is only one High Court in a State. A decision of a judge of the High Court is a decision binding on the Court. In the case of DINGYADI VS. INEC (2011) 10 NWLR (PT. 1255) 347, the Supreme Court per Adekeye, JSC, held that: "Under the doctrine of stare decisis, Lower Courts are bound by the theory of precedent. It is in effect a doctrine which enjoins judges to stand by their decisions and the decisions of their predecessors however wrong they are and whatever injustice they inflict. All Courts established under the Constitution derive their powers and authority from the constitution. The hierarchy of Courts shows the limit and powers of each Court. It is to ensure that hierarchy of the Court is never in issue. MOHAMMED VS. OLAWUNMI (1993) 4 NWLR (PT. 287) PG. 254; 7 UP BOTTLING CO. LTD. VS. ABIOLA & SONS (NIG.) LTD. (1995) 3 NWLR (PT. 883) PG. 257; OSHO VS. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT. 184) PG. 157 DALHATU VS. TURAKI (2003) 15 NWLR (PT. 843) PG. 310; UNIVERSITY OF LAGOS VS. OLANIYAN GIVEN in the absence of jurisdiction MADUKOLU VS. NKEMDILIM & ORS. (1962) 2 SCNLR 341; SKEN CONSULT VS. UKEY (1981) SC 6. 5 where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication IGWE VS. KALU (2002) 14 NWLR (PT. 787) PG. 435; ALAO VS. ACB LTD. (2000) 9 NWLR (PT. 672) PG. 264". (Underlining mine). It is highly significant to state here that once a Judge has given his decision, he is functus officio and has no business re-opening the case for any further review. This is also applicable to the decision of his predecessor or his brother of co-ordinate jurisdiction. It is my understanding that the doctrine of stare decisis does not admit of any fanciful or sentimental reasoning that a judge who stumbles on an information that runs counter to the position earlier adopted in a previous case will arrogate to himself the power to review the earlier judgment of the Court. It is a worst case scenario if it is an unsolicited exercise as in the instant case. The foregoing notwithstanding, the Court is permitted to exercise restricted jurisdiction to set aside its own judgment or the judgment of a Court of coordinate jurisdiction in situation of a default judgment or judgment obtained by fraud. This is not the case here. In the instant case, the Lower Court considered the question of whether by the present Claimants' action, the Claimant is not inviting this Court to sit as an appellate Court and make pronouncement on a judgment of a Court of co-ordinate jurisdiction? See page 98 of the Record of Appeal. The learned trial judge then held as follows: The law has been and still remains, that when the decision of a Court has been made per incurriam (as in the instant case), that same Court, either presided by the same Judge who made the decision, or a different Judge sitting in that Court, or another High Court within jurisdiction, can intervene to redress the miscarriage occasioned, in the light of fact(s) revealed, which the first Judge has no knowledge. In the instant case, I do not think My Lord, Hon. Justice Michael Edem was availed a copy of Exhibit "A", which is the Table of New Local Government Areas created for Cross River State, having Agbokim Mgbabor or Little Agbokim, under Etung Local Government Area. To that extent, with deference to My Lord, his finding and declaration, that Agbokim Mgbabor is under Ikom Local Government Area, as contained in Exhibit "A" attached to the present Claimants originating summons. That being the case, an intervention by this Court, for the purpose of reviewing that decision to meet the ends of justice, will not amount to this Court sitting on appeal, over the judgment of a Court of co-ordinate jurisdiction. It will rather cure the prognosis that has occasioned a miscarriage of justice, by this Court's inadvertence to Exhibit "A", and the failure to make use of same, to come to the right finding, that Agbokim Mgbabor Village, is in Etung, and not in Ikom Local Government Area of Cross River State, Nigeria. See pages 98 to 99 of the Record of Appeal). From the record available before this Court, it is very correct to point out that the decision referred to by the Lower Court was not brought before the Lower Court for review. The reliefs claimed by the Respondents at the Lower Court were to stop the Appellant from taking benefit of that decision. It is therefore an error for the learned trial judge to seek that situation to review the decision of another judge of the High Court. Furthermore, it is essential to note that a trial judge has no jurisdiction to grant any relief not claimed by any of the parties. In the instant case none of the parties made a request for the review of the earlier judgment of the Court. The Lower Court in that situation was only playing a father Christmas or engaging in (with all respect) a "buy one get two" promotional by granting an order not sought by any of the parties. What is more, under the doctrine of stare decisis, the learned trial judge must stand by his decisions or decisions of his predecessor howsoever wrong they are and whatever injustice they inflict. See DINGYADI VS. INEC (supra) until reviewed by the appellate Courts. The case of COLE VS. JIBUNOH & ORS. (2016) 4 NWLR (PT. 1503) 499 is very clear on this. In that case, the Supreme Court per Galadima, JSC held: A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. See CHIEF GANI VS. A-G LAGOS STATE (NO. 1) (1989) 3 NWLR (PT. 112) 707 at 774 where the Court held: "The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court even if the judgment of Longe J. were a nullity the proper way to set it aside is by an Appeal not by a review before a Court of coordinate jurisdiction... It seems to me that, in view of the provision of the Constitution, which carefully shores jurisdiction to the various Courts... Only the Court vested with the particular jurisdiction can interfere with the decision of another Court." Per Galadima, JSC. From the foregoing consideration therefore, the review of the earlier judgment of the Lower Court in Suit No. HM/102/97 cannot be justified. It was done in error."per ADAH, J.C.A. (Pp , Paras. B-D) - read in context

3 STEPHEN JONAH ADAH, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the Cross River State High Court, Etung Judicial Division in Suit No.HM/46/2008 delivered on the 23rd day of May, 2013 by Maurice Eneji, J. The Appellant was the Defendant at the Lower Court while the Respondents were the Plaintiffs. Before the Lower Court the Respondents took out an originating summons claiming the following three reliefs: 1. A Declaration that the Defendant having been declared by the Court of Appeal in CA/C/128/04 as not being the proper Respondent in the matter cannot take benefit of the judgment in HM/102/ A Declaration that the Court of Appeal having declared that Late Chief Njang Assam took out the Summons in HM/102/97 in a personal capacity in its judgment in CA/128/04 puts a final stop to the claims of the Defendant that Agbokim Mgbabor Village is in Ikom Local Government. 3. An order of injunction restraining the Defendant from claiming any benefits from the judgment in HM/102/97 by virtue of the orders/declarations of the Court of Appeal in CA/C/128/04. This appeal was filed 1

4 against the judgment of the Lower Court but from the records, it is noticed that the case at the Lower Court was indexed or registered as Suit No. HM/46/2008 and HE/22/2011. These two numbers refer to the same case. A look at pages 1 & 65 of the Record reflects that the suit was registered at Ikom High Court as HM/46/2008 on 8th July, Then on 31st of May 2011, it was transferred by Justice B. T. Ebuta to the High Court of Effraya and was registered as Suit No.HE/22/2011. This explanation is necessary to clear the doubt as to why one case will have two suit numbers at the Lower Court. The Lower Court heard this case as presented by the parties and entered judgment in favour of the Plaintiffs. The Lower Court in consequence of this made the following far-reaching orders: 1. A Declaration is hereby made that the Defendant having been declared by the Court of Appeal in CA/C/128/04 as not being a proper Respondent in the matter, cannot take benefit of the Judgment in HM/102/ A Declaration is hereby made, that the Court of Appeal having declared that Late Chief Felix Njang Assam took out the summons in HM/102/97 in a personal capacity 2

5 in its Judgment in CA/C/128/04, puts a final stop to the claims of the Defendant that Agbokim Mgbabor is in Ikom Local Government. 3. An Order is hereby made setting aside the Judgments of this Court in Suit No. HM/102/98 and HM/93/97 as the said Judgments were made per incurriam of Exhibit A. 4. An Order is hereby made declaring that Agbokim Mgbabor Village or Little Agbokim is in Etung Local Government Area of Cross River State, on the strength of Exhibit A. 5. An Order of injunction is hereby made restraining the Defendant from claiming any benefits henceforth, from the Judgment in HM/102/97 by virtue of the Orders/Declarations of the Court of Appeal in CA/C/128/04, as well as by the orders of this Court in this action. 6. This case is accordingly determined and disposed, with no order as to cost. Aggrieved by the decision of the Lower Court, the Defendants appealed to this Court vide the notice of appeal filed on the 11th day of June, There are three grounds of appeal. The record of appeal was transmitted on 12th January, 2014 but deemed properly transmitted and served on 4th day of October, 3

6 2014. The appeal was argued on the Amended Appellant s brief of Argument filed on the 11th day of November, 2016 with the leave of this court. The Amended Appellant s Brief was settled by D. D. Ujong, Esq. The Respondents Brief settled by O. N. Agbo, Esq. was filed on 22nd day of June, The Appellant filed a reply brief on 22nd day of September, At the hearing of this appeal on 25th September, 2017 the learned counsel for the Appellant adopted his Appellant s brief and the reply brief as his argument for this appeal. He urged the Court to allow the appeal and set aside the decision of the Lower Court. The learned counsel for the Respondents on the other hand adopted his brief and urged the Court to dismiss this appeal. The learned counsel for the Appellant distilled two issues for determination. These two issues are worded as follows: 1. Whether the trial Court was right in setting aside the judgment of the High Court in HM/102/97 and HM/93/98 when such a relief was not sought. (Distilled from Ground 1). 2. Whether the earlier judgment of the High Court in Suit No. HM/93/98 did not operate as 4

7 Res Judicata and thus robbing the Lower Court of jurisdiction in the matter. (Distilled from Grounds 2 & 3). The Respondents in their Brief set down three issues for determination viz: 1. Whether the pronouncement of the Lower Court that Agbokim Mgbabor is not in Ikom Local Government but in Etung Local Government Area is not covered by Relief No. 2 in the Originating Summons of the Respondents? (Ground 1). 2. Whether a Court can set aside its judgment or the judgment of a concurrent Court where same is delivered per incurriam or same is a nullity. (Grounds 2). 3. Whether the judgment of the High Court in Suit No. HM/93/98 having not been prosecuted in a representative capacity is qualified to operate as res judicata. (Grounds 3). It is now settled that the purpose for distilling issues for determination is to narrow the issues in the ground of appeal so filed in the interest of accuracy, clarity and brevity. See ANIE VS. UZORKA (1993) NWLR (PT. 309). In-as-much-as proliferation of issues is antithetical to the norms of our appellate jurisdiction, where issues generated by the grounds of appeal can only be covered by distilling such 5

8 issues from each of the grounds of appeal; this Court in exercise of its wide and enormous discretion can allow such issues to be so framed. In the instant case the Respondents have distilled one issue from each of the grounds of appeal as against the two issues distilled by the Appellant. In order not to allow any of the issues legitimately raised in an appeal to be hanging as a result of the scanty coinage of issues by the Appellant, the Respondents issues, reflective of all the issues generated by the grounds of appeal shall be entertained. In the instant appeal, issues 1 and 2 distilled by the Respondents have more appropriately covered the grounds of appeal than those framed by the Appellant. I shall therefore set down the 1st and 2nd issues raised by the Respondents for consideration in this appeal. Issue three distilled by the Respondent has no bearing or accord with the grounds of appeal. That issue is incompetent and it is hereby struck out. I now shall take issues 1 and 2 as distilled by the Respondent for consideration. ISSUE ONE This issue is whether the pronouncement of the Lower Court that Agbokim Mgbabor is not in Ikom Local 6

9 Government but in Etung Local Government Area is not covered by relief 2 in the Originating Summons of the Respondents. (Ground 1). This issue raised specifically by the Respondents was dealt with by the Appellant in the reply brief. The Appellant canvassed that the trial Court did not make any consequential order with regards to where Agbokim Mgbabor is located. This is strange because the very first ground of appeal of the Appellant is the direct opposition of the Appellant s contention in the reply brief. The Appellant s ground is at page 104 of the Record of Appeal reads: GROUND 1: ERROR IN LAW The learned trial judge erred in law when he gratuitously granted a relief that was not ask for. PARTICULARS OF ERROR: 1. That Agbokim Mgbabor is in Etung Local Government Area and not in Ikom Local Government Area even when there was no such relief. 2. That issue of whether Agbokim Mgbabor is in Ikom Local Government Area is pending in High Court 7 Calabar in HC/417/2010 and therefore sub judice. The Appellant clearly made the issue of whether Agbokim Mgbabor is in Etung Local Government Area or Ikom Local Government 7

10 Area his foremost ground of appeal. The trial Court in its judgment considered that issue from the Record of appeal before us in this appeal. At pages 98 to 99 of the Record the trial Court in its judgment said: In the instant case, I do not think My Lord, Hon. Justice Michael Edem was availed a copy of Ex A, which is the Table of New Local Government Areas created for Cross River State, having Agbokim Mgbabor or Little Agbokim, under Etung Local Government Area. To that extent, with deference to My Lord, his finding and declaration, that Agbokim Mgbabor is under Ikom Local Government, was made per incurriam of the fact that it is under Etung Local Government Area, as contained in Ex. A, attached to the present Claimants originating summons It will rather cure the prognosis that has occasioned a miscarriage of justice, by this Court s inadvertence to Exhibit A, and the failure to make use of same to come to the right finding, that Agbokim Mgbabor Village, is in Etung, and not in Ikom Local Government Area of Cross River State, Nigeria. The trial Court in the consequential Order No. 4 8

11 conclusively prescribed as follows: 4) An Order is hereby made declaring that Agbokim Mgbabor Village or Little Agbokim is in Etung Local Government Area of Cross River State, on the strength of Exhibit A. It is therefore, obvious that the issue of where Agbokim Mgbabor is located was not designed or crafted by the Respondents counsel; it was deeply rooted in the judgment of the Lower Court. From the foregoing therefore it is inevitable to conclude and I so conclude that the issue of whether Agbokim Mgbabor is in Ikom Local Government Area was a live issue before the Lower Court in this case. The Lower Court therefore did not slip into any error in making findings on that issue. Issue one is therefore resolved in favour of the Respondents. ISSUE TWO This issue is whether a trial Court can set aside its judgment or the judgment of a concurrent Court where same is delivered per incurriam or same is a nullity. The Appellant in his brief argued that the Lower Court lacked the jurisdiction to set aside the order of another Judge of the same Court, a Court of competent and coordinate jurisdiction, especially as

12 9

13 such a relief that was not even sought in the suit. He relied on the decision of the Supreme Court in NWAOGU VS. ATUMA (2013) 11 NWLR (PT. 1364) 140, B C and OMOKUWAJO VS. FRN (2013) 9 NWLR (PT. 1359) 300, 327 to 328 that: A Court should not make unsolicited orders or grant prayers not sought by the parties. This is because the Court is not a charitable organization." He therefore contended that the Lower Court clearly went outside its scope and jurisdiction to grant reliefs not sought by the Claimants at the Lower Court. A cursory look at page 1 of the Record of Appeal, where the reliefs of the Plaintiffs (now Respondents) were stated, shows clearly, that the Plaintiffs never asked the Court to determine whether Agbokim Mgbabor was in Etung Local Government or in Ikom Local Government. He canvassed that the Claimants were clearly challenging the status of the Defendant in the Lower Court (now Appellant) to benefit from the judgment of the High Court in HM/102/97. The Respondents in their own brief canvassed vigorously that the Lower Court in reaching a decision to set aside the judgments of the High Court in HM/98/98 10

14 reviewed the facts before it and the applicable law and found out that the said judgment was in fact delivered per incurriam. See the relevant portion of the said judgment at pages 98 and 99 of the Records of Appeal. He further canvassed that where the judgment of a Court is considered to be a nullity, the same Court or a Court of coordinate jurisdiction can have such a judgment set aside even without a prayer from any party. He canvassed that it can be done suo motu. He relied on the case of BELLO VS. INEC (2010) 19 WRN 1, where it was held that: The law regarding the position of any judgment or order of Court which is a nullity for any reason whatsoever, is that the Court in its inherent jurisdiction in entitled ex-debito justitiae to have that judgment or order set aside on the application of an affected or aggrieved party or even suo motu. He in addition relied on the case of AKINTOKUN VS. LPDC (2014) ALL FWLR (PT. 748) PAGE 920 to say that: Incuria/incuriae means carelessness or neglect. The legal connotation is that when a case is decided per incurriam, it denotes the idea that it is decided through inadvertence and or 11

15 in ignorance of the relevant law. As a general rule, the only cases in which decisions should be held to have been given incurriam are those decisions given in ignorance or forgetfulness of some authority binding on the Court. The learned counsel for the Respondents therefore concluded that the learned trial judge in Suit No. HM/102/98 and HM/93/98 did not avert his mind to the law that created Etung Local Government Area being a gazette of the Federal Military Government of Nigeria as opposed to the Cross River State Law on Clan Creation 1996 which was published before the creation of Etung Local Government Area. This issue two was distilled from Ground 2 of the Notice of Appeal. For a deeper understanding of the complaint of the Appellant in that respect I wish to reproduce ground two of the notice of appeal. This ground reads: GROUND 2: ERROR IN LAW The learned trial judge erred in law in holding that Agbokim Mgbabor is in Etung Local Government Area when there was no motion praying the Court to set aside the judgment in Suit No. HM/93/98 and which said judgment is still subsisting and valid. PARTICULARS That in the face 12

16 of the judgment, in HM/93/98 declaring the extension of the areas of authority of Etung Local Government to Agbokim Mgbabor as illegal, null and void the Court ought not to have declared that Agbokim Mgbabor is in Etung Local Government Area. The complaint of the Appellant is clearly that the Lower Court was in error for setting aside the judgment in Suit No. HM/93/98 without any application from any of the parties before the Court to that effect. The parties have cited some authorities which established the fact that generally a Court cannot sit on appeal over its own judgment or review the judgment of a Court of coordinate jurisdiction. This general principle of law was explained in the case of N.I.M.B. LTD. VS. U.B.N. LTD. (2004) 12 NWLR (PT. 888) 599, 621 where the Supreme Court per Pats-Acholonu, JSC held as follows: The theory of justice to which we adhere rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of coordinate jurisdiction make contradictory and inconsistent orders in 13

17 respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaunting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of law is that just as stare decisis exercise a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of co-ordinate jurisdiction do not sit on appeals on each other, attracts respect for the law. See also the earlier Supreme Court decision in WITT & BUSCH LTD. VS. DALE POWER SYSTEMS PLC (2007) 17 NWLR (PT. 1062) 1. In our legal system, the doctrine of stare decisis holds sway. It is an essential foundation upon which certainty of the law is guaranteed. The Court does not ordinarily depart from its previous decisions. This is more apt in a situation where the decision is of the same Court and given by a judge of the Court. The rational is that by Section 270(1) under our 1999 Constitution (as amended), there is only one High Court in a State. A decision of a judge of the High Court is a decision binding on the Court. In the case 14

18 of DINGYADI VS. INEC (2011) 10 NWLR (PT. 1255) 347, the Supreme Court per Adekeye, JSC, held that: Under the doctrine of stare decisis, Lower Courts are bound by the theory of precedent. It is in effect a doctrine which enjoins judges to stand by their decisions and the decisions of their predecessors however wrong they are and whatever injustice they inflict. All Courts established under the Constitution derive their powers and authority from the constitution. The hierarchy of Courts shows the limit and powers of each Court. It is to ensure that hierarchy of the Court is never in issue. MOHAMMED VS. OLAWUNMI (1993) 4 NWLR (PT. 287) PG. 254; 7 UP BOTTLING CO. LTD. VS. ABIOLA & SONS (NIG.) LTD. (1995) 3 NWLR (PT. 883) PG. 257; OSHO VS. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT. 184) PG. 157 DALHATU VS. TURAKI (2003) 15 NWLR (PT. 843) PG. 310; UNIVERSITY OF LAGOS VS. OLANIYAN GIVEN in the absence of jurisdiction MADUKOLU VS. NKEMDILIM & ORS. (1962) 2 SCNLR 341; SKEN CONSULT VS. UKEY (1981) SC 6. 5 where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication IGWE VS. KALU (2002) 15

19 14 NWLR (PT. 787) PG. 435; ALAO VS. ACB LTD. (2000) 9 NWLR (PT. 672) PG (Underlining mine). It is highly significant to state here that once a Judge has given his decision, he is functus officio and has no business re-opening the case for any further review. This is also applicable to the decision of his predecessor or his brother of co-ordinate jurisdiction. It is my understanding that the doctrine of stare decisis does not admit of any fanciful or sentimental reasoning that a judge who stumbles on an information that runs counter to the position earlier adopted in a previous case will arrogate to himself the power to review the earlier judgment of the Court. It is a worst case scenario if it is an unsolicited exercise as in the instant case. The foregoing notwithstanding, the Court is permitted to exercise restricted jurisdiction to set aside its own judgment or the judgment of a Court of coordinate jurisdiction in situation of a default judgment or judgment obtained by fraud. This is not the case here. In the instant case, the Lower Court considered the question of whether by the present Claimants action, the Claimant is not 16

20 inviting this Court to sit as an appellate Court and make pronouncement on a judgment of a Court of co-ordinate jurisdiction? See page 98 of the Record of Appeal. The learned trial judge then held as follows: The law has been and still remains, that when the decision of a Court has been made per incurriam (as in the instant case), that same Court, either presided by the same Judge who made the decision, or a different Judge sitting in that Court, or another High Court within jurisdiction, can intervene to redress the miscarriage occasioned, in the light of fact(s) revealed, which the first Judge has no knowledge. In the instant case, I do not think My Lord, Hon. Justice Michael Edem was availed a copy of Exhibit A, which is the Table of New Local Government Areas created for Cross River State, having Agbokim Mgbabor or Little Agbokim, under Etung Local Government Area. To that extent, with deference to My Lord, his finding and declaration, that Agbokim Mgbabor is under Ikom Local Government Area, as contained in Exhibit A attached to the present Claimants originating summons. That being the case, an intervention by 17

21 this Court, for the purpose of reviewing that decision to meet the ends of justice, will not amount to this Court sitting on appeal, over the judgment of a Court of coordinate jurisdiction. It will rather cure the prognosis that has occasioned a miscarriage of justice, by this Court s inadvertence to Exhibit A, and the failure to make use of same, to come to the right finding, that Agbokim Mgbabor Village, is in Etung, and not in Ikom Local Government Area of Cross River State, Nigeria. See pages 98 to 99 of the Record of Appeal). From the record available before this Court, it is very correct to point out that the decision referred to by the Lower Court was not brought before the Lower Court for review. The reliefs claimed by the Respondents at the Lower Court were to stop the Appellant from taking benefit of that decision. It is therefore an error for the learned trial judge to seek that situation to review the decision of another judge of the High Court. Furthermore, it is essential to note that a trial judge has no jurisdiction to grant any relief not claimed by any of the parties. In the instant case none of the parties 18

22 made a request for the review of the earlier judgment of the Court. The Lower Court in that situation was only playing a father Christmas or engaging in (with all respect) a buy one get two promotional by granting an order not sought by any of the parties. What is more, under the doctrine of stare decisis, the learned trial judge must stand by his decisions or decisions of his predecessor howsoever wrong they are and whatever injustice they inflict. See DINGYADI VS. INEC (supra) until reviewed by the appellate Courts. The case of COLE VS. JIBUNOH & ORS. (2016) 4 NWLR (PT. 1503) 499 is very clear on this. In that case, the Supreme Court per Galadima, JSC held: A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. See CHIEF GANI VS. A-G LAGOS STATE (NO. 1) (1989) 3 NWLR (PT. 112) 707 at 774 where the Court held: The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the 19

23 decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court even if the judgment of Longe J. were a nullity the proper way to set it aside is by an Appeal not by a review before a Court of coordinate jurisdiction... It seems to me that, in view of the provision of the Constitution, which carefully shores jurisdiction to the various Courts... Only the Court vested with the particular jurisdiction can interfere with the decision of another Court." Per Galadima, JSC. From the foregoing consideration therefore, the review of the earlier judgment of the Lower Court in Suit No. HM/102/97 cannot be justified. It was done in error. Issue two is therefore resolved in favour of the Appellant. Issues one and two of the issues raised by the Respondents are the only issues distilled from the grounds of appeal. These are the two issues that will be considered in this appeal. Issue one framed by the Appellant is the same with issue two of the Respondents. The decision of the Lower 20

24 Court veered off completely from the case brought to the Court by the Plaintiff/Respondent in this appeal. A look at the evidence before the Court will show that the plaintiff at the Lower Court did not prove its case. The three reliefs claimed were out to derive benefit from the judgment of this Court in CA/C/128/04. The copy of the decision of this Court in that appeal was exhibited before the Lower Court as Exhibit C. Exhibit C is at pages 8 to 24 of the Record of Appeal. The leading judgment which was delivered by Nwali Sylvester Ngwuta, JCA (as he then was) and which judgment has concurrence of Omokri and Owoade JJCA, this Court held as follows: In the trial analysis the Suit No. HM/102/97 is a personal action which could not survive the plaintiff. The order for substitution was made ex grantia and made without jurisdiction as the Lower Court was functus officio at the time of the order. There is therefore no respondent in the purported appeal and the 4th and 5th Appellants are not parties thereto having failed to appeal within 21 days from 18/3/2002 as ordered by this Court or at all. The preliminary objection is well taken. The appeal is 21

25 incompetent and ipso facto this Court has no competence to entertain it. See MADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587. The consolidated appeals against the ruling of the trial Court on 20/4/98 and its judgment delivered on 18/11/98 are hereby struck out for being incompetent. There shall be no order as to costs. It follows from this decision that the Court of Appeal struck out the consolidated appeals against the ruling of the trial Court on 20th April, 1998 and its judgment delivered on 18th November, 1998 in suit No. HM/102/97 because the appeal was incompetent. If an appeal is incompetent it means there is no appeal and the jurisdiction of this Court could not be activated in that case. Since the appeal was incompetent, nothing on merit came out for the parties thereto to harvest and take benefit of. The Lower Court ought to have assessed this and dismissed the claim of the Plaintiff before the lower Court. This, the Court failed to do. This Court will now under Section 15 of the Court of Appeal Act interfere and dismiss the claim. From the foregoing therefore, the appeal is allowed. Judgment of the Lower Court in Suit No. HM/46/2008, 22

26 HE/22/2011 delivered on 23rd of May, 2013 is hereby set aside. In its stead, an order dismissing the claim of the Plaintiff therein is hereby given. The parties are to bear their respective costs. CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I read before now the judgment delivered by my learned brother, S. J. ADAH, JCA. I adopt the facts of this appeal as properly set down in the lead judgment. I agree with the reasoning and conclusion. There is merit in this appeal and it is accordingly allowed. The judgment of the trial Court in Suit No. HM/46/2008, HE/22/2011, delivered on the 23rd of May, 2013 is hereby set aside. In its stead, an order dismissing the claim of the plaintiff therein is given. I abide by the order as to costs made by S. J. ADAH, JCA, in the lead judgment. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein. I equally find merit in the appeal and I accordingly allow it. I adopt the 23

27 consequential orders in the lead judgment as mine. 24

28 Appearances: Augustine Onwualu (Miss) with, Roselyn Igbokwe (Miss) For Appellant(s) S. O. Ijoma, Esq. For Respondent(s)

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