In the words of My Lord Justice BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment) in THE ECONOMIC AND FINANCIAL CRIMES COMMISSION v. MR. AYODELE FAYOSE & ANOR (2018) LPELR-44131(CA)
“First, it must be realized that the jurisdiction of the Court to set aside its judgment or orders or that of a Court of coordinate jurisdiction is, as Nnaemeka-Agu J.S.C. put it in Okoye v. Nigerian Construction & Furniture Co. Ltd (1991) 6 NWLR (PT 199) 501 at 540 paras A-B, ‘not only rare but special’. It has to be so because the right to set aside orders of Court is ordinarily the prerogative of an appellate Court, which itself operates on the well-tested reasoning that two heads (sometimes even more) are better than one when it comes to deciding the wrongness of the decision of a judge. That is why even this Court despite its superiority to the High Court and our assumed superior knowledge to the Judges of High Court, only sits in panels of at least three when hearing appeals from the one-man decisions of High Courts and other subordinate Courts. The same thing applies to our senior brothers upstairs who must also sit in a panel of at least five Justices to hear appeals from our three-man decisions. The exception to this rule, that is, the ‘rare and special jurisdiction’ of a Court to set aside the judgment and orders of a Court of coordinate jurisdiction, rather runs on the footing that where a judgment is patently a nullity, it is as if it never existed in the first place so the same judge or even a brother Judge of the same Court can make a declaration to that effect and an appeal is not necessary.”
There is therefore a need for jurisdictional synergy between Courts of co-ordinate jurisdiction. Huge caution should be adopted when a judge is asked to set aside a judgment or an order made by a fellow Judge/Court of co-ordinate jurisdiction.
ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
- Whether having regards to the facts and circumstances of this case the Court below has the requisite jurisdiction to order the appellant and the 2nd respondent to jointly or severally unblock and make operational account Numbers 100312665 and 9013074033 belonging to the 1st respondent notwithstanding an existing order of the Federal High Court, Lagos Judicial Division made by Hon. Justice M.B. Idris.
- Whether having regards to the facts and circumstances of this case, the learned trial judge was not in error when he held that not hearing the 1st respondent was a breach of his constitutional right.
- Whether the lower Court was not in error when it held that having regard to the provisions of Section 308 of the Constitution and the circumstances of this case, the appellant has no power to freeze the account of the 1st respondent being a sitting Governor.
The appeal was allowed, the judgment delivered by Justice Taiwo O. Taiwo of the Federal High Court, Ekiti Judicial Division, on 13/12/2016 granting the claims of Mr. Ayodele Fayose in Suit FHC/AD/CS/27/2016 was set aside.
- JUDGMENT AND ORDER – SETTING ASIDE JUDGMENT/ORDER: Whether a judge has the power to set aside the judgment or order of another judge of coordinate jurisdiction
“First, it must be realized that the jurisdiction of the Court to set aside its judgment or orders or that of a Court of coordinate jurisdiction is, as Nnaemeka-Agu J.S.C. put it in Okoye v. Nigerian Construction & Furniture Co. Ltd (1991) 6 NWLR (PT 199) 501 at 540 paras A-B, ‘not only rare but special’. It has to be so because the right to set aside orders of Court is ordinarily the prerogative of an appellate Court, which itself operates on the well-tested reasoning that two heads (sometimes even more) are better than one when it comes to deciding the wrongness of the decision of a judge. That is why even this Court despite its superiority to the High Court and our assumed superior knowledge to the Judges of High Court, only sits in panels of at least three when hearing appeals from the one-man decisions of High Courts and other subordinate Courts. The same thing applies to our senior brothers upstairs who must also sit in a panel of at least five Justices to hear appeals from our three-man decisions. The exception to this rule, that is, the ‘rare and special jurisdiction’ of a Court to set aside the judgment and orders of a Court of coordinate jurisdiction, rather runs on the footing that where a judgment is patently a nullity, it is as if it never existed in the first place so the same judge or even a brother Judge of the same Court can make a declaration to that effect fact and an appeal is not necessary: (Kpema v. The State (1986) 1 NWLR (PT 17) 396 @ 405-406 (S.C.); Lauwers Import-Export v. Jozebson Ind. Ltd (1988) 3 NWLR (PT 83) 429 (S.C.); In Re: Akinwunmi (1988) 3 NWLR (PT 83) 483 (S.C.). There is a very long line of cases including Okoye v. Nigerian Construction & Furniture Co. Ltd supra, Skenconsult (Nig.) Ltd v. Ukey (1981) NSCC 1; Emodi v. Kwentoh (1996) 2 NWLR (PT 433) 656 @ 681 paras B – C (Onu J.S.C.); Eke v. Ogbonda ( 2007) ALL FWLR (PT 351) 1456 @ 1473 (S.C.); Oboroh v. Ughuvwu (2000) 3 NWLR (PT 647) 120 @ 129 A-C, Akintan J.C.A. as he then was), which all confirm the power which inheres in every Court to set aside not only its judgment and orders but also those of brother Judges of coordinate jurisdiction that are shown to be outright nullity. The invalidity/nullity of such a decision can even be raised viva voce: See Wema Bank Plc v. NAIC (2015) 16 NWLR (PT 1484) 93 @ 124 (S.C.). The difficulty however lies in ascertaining when the wrong complained of in a judgment or order is a fundamental defect that nullifies the decision making it liable to be set aside by the same Court or Court of coordinate jurisdiction, as opposed to when the wrong decision complained of is a mere irregularity, a mere defect in procedure or wrong decision of a Court made within its jurisdiction, which does not nullify. This distinction was drawn and confirmed in the cases of Okoye v. Nigerian Construction & Furniture Co. Ltd supra p. 531 to 532, Uku & Ors v. Okumagba & Ors (1974) NSCC 128 @ 140 (lines 45 – 50); Amanambu v. Okafor (1966) NSCC 232 @ 234 (lines 10 – 15); Skenconsult (Nig.) Ltd v. Ukey (supra) at p. 16 -17. In Okoye v. Nigerian Construction & Furniture Co. Ltd supra, Akpata J.S.C. delivering lead judgment said as follows:
“First, if the trial Court had no jurisdiction in Ekpere’s case because Jesse Clan was not made a party this Court would not have “anxiously considered what should be the order of this Court”. It would have unhesitatingly declared the judgment null and void and of no effect whatsoever. Secondly, it would not have crossed the mind of this Court to think of remitting the action for a retrial.
As stated in the case of Madukolu and Ors v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587 at page 596:
‘If a Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to effect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial in which case the appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.’
“In my view, failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in setting aside the judgment on appeal. Setting aside a judgment or making an order striking out the action or remitting the action for a retrial in such circumstance will not be for lack of jurisdiction or on the basis of the judgment being a nullity. The trial Court itself is incompetent to review the judgment; more so another Court of co-ordinate jurisdiction.
I am therefore in agreement with the trial Court and the Court of Appeal that the only avenue open to the plaintiffs/appellants in this case to challenge the order of Nwokedi, J. was by way of appeal.” (Emphasis mine)
In the same vein in it was also said in Skenconsult (Nig.) Ltd v. Ukey (supra) at p. 16 -17 (Nnamani, J.S.C.) as follows:
“It is my view that looking through the authorities, it would seem that the issue can be resolved depending on whether in the course of proceedings there has been a fundamental defect, such as we have in the instant case, which goes to the issue of jurisdiction and competence of the Court. In such a case, the proceedings are a nullity and any orders made would also be nullities. If of course the Court is competent and the order is the result of exercise of the judge’s discretion after hearing evidence, the decision will be appealable. In Chief Uku’s case, (supra), the Court that made the first order was competent and made its order after examining conflicting affidavits and taking arguments. Amanambu’s case was a case of amendment and to interfere with the order made was tantamount to sitting on appeal over it. From the deduction I have made from the authorities, Warrignton, J. ought to have set aside the orders made by Romer J. which he found had been made without jurisdiction and were treated as nullities. The principle of fundamental defect is clearly the rationale of the decision of the Court of Appeal in England in Craig v. Kanssen (supra) in which Lord Green, Master of the Rolls, had drawn the distinction ‘between proceedings or orders which are nullities and those in respect of which there has been nothing worse than an irregularity.’ In the case of the former, it was his view that a person affected by such a decision is entitled ex debito justiciae to have it set aside. It could be set aside by the Court which made it.” (Emphasis mine.)
The Supreme Court (Nnamani, J.S.C) in Skenconsult’s case at p. 17 also confirmed unequivocally the fact that the power to set aside a judgment or order that is a nullity can be exercised not only by the judge that made it but by any other judge of that Court.” Per UGO, J.C.A. (Pp. 34-40, Paras. B-B).
- JUDGMENT AND ORDER – INTERIM ORDER: Position of the law as regards interim preservation order envisaged by Section 34 of the Economic and Financial Crimes Commission Act
“I do not also see any conflict between Section 308 or 44 of the Constitution and Section 34 of the EFCC Act 2004 empowering appellant to apply for an interim order of attachment of suspected stolen public funds as Taiwo J. suggested in his judgment. Particularly on the alleged conflict between Section 308 of the Constitution and Section 34 of EFCC Act, I have already addressed it with reference to the dictum of the apex Court (Uwaifo J.S.C) in Fawehinmi’s case. I can only add, in agreement with Mr. Oyedepo Rotimi of counsel for appellant, that the interim preservation order envisaged by Section 34 of EFCC Act as well as the order made by Idris J. were only interim and did not amount to expropriation of the funds frozen as to conflict with Section 44 of the Constitution. The order was only preservative for appellant to take possession and preserve the allegedly unlawfully acquired funds to be used for possible prosecution later. I note that even civil procedure has provision for similar useful preservative orders in the name of Anton Pillar Orders and so forth which are also usually granted ex-parte (without notice to the person affected) so that the evidence is not lost or destroyed and thereby frustrate its use in Court. In any event, this Court has held, consistently, that the grant of interim attachment of property by ex-parte order under Section 34 of the EFCC Act does not infringe on right to fair hearing: See Esai Dangabar v. F.R.N. (2014) 12 NWLR (PT 1422) 575 @ 607- 608 (Bada, J.C.A.); F.R.N. v. Ikedinwa (2013) LPELR-21120. The fact that forfeiting property in the interim under the EFCC Act is not unconstitutional has also been confirmed in Akingbola v. Chairman, EFCC (2012) 9 NWLR (PT 1306) 475 @ 500 – 502; Felimon Enterprises Ltd. v. The Chairman, EFCC and Anor (2013) 1 BFLR 94 @ 105-106. Not only am I in total agreement with those decisions, I again agree with Mr. Oyedepo Rotimi for appellant that the procedure of interim ex-parte applications, generally, and particularly under Section 34 of the EFCC Act does not envisage or permit service of or joining the party likely to be affected by ex-parte before its grant, a position settled beyond dispute by the apex Court in 7UP Bottling Co Ltd v. Abiola & Sons Ltd (1995) 3 NWLR (PT 383) 257 @ 287.
The argument about joining 1st respondent, a sitting Governor who enjoys absolute immunity under Section 308 of the Constitution from legal proceedings against him, is in fact a complete non-sequitur. In fact that argument of Taiwo J., unfortunately supported by learned silk representing 1st respondent, seem to me one in circles given the main plank of their other argument that the same 1st respondent as someone covered by immunity under Section 308 cannot even be sued. With that immunity from prosecution enjoyed by 1st respondent, how could he have been joined to the suit before Idris J? In what capacity would appellant have joined 1st respondent without infringing his immunity? As a co-applicant? This contention of Taiwo J. and 1st respondent’s counsel and their reliance on the cases they cited on effect of non-joinder (including some on the peculiar terrain of election petitions), with due respect, confirms the wisdom in the advice of Nnaemeka-Agu J.S.C. in Ojibah v. Ojibah (1991) 5 NWLR (PT 191) 296 for counsel and the Courts to be wary of ‘deciding cases and issues on the established legal jingles and catch-phrases without fully asking one’s self how well they fit into the particular facts of the case.” None of the cases relied on by Taiwo J. in his judgment which 1st respondent’s counsel also cited related to or has any bearing on the purport of EFCC Act 2004 generally or its Section 34, a special legislation enacted by our representatives in parliament to fight our hydra-headed national malaise of corruption. None of those cases also raised the peculiar issue here of whether a person who enjoys absolute immunity under Section 380 of the Constitution should be joined when EFCC has cause to proceed against him pursuant to Section 34 of EFCC Act, 2004. If 1st respondent was aggrieved with the order, it was open to him to exercise his right to challenge it and ask for its discharge before the same Idris J., and not as he did by suing afresh in another Division of the same Federal High Court before Taiwo J. The action of 1st respondent even smacks of abuse of process, which Taiwo J. ought to have struck down rather than grant the application and set aside the orders of Idris J. as he did. Taiwo J. had a duty to protect his process from abuse and strike down that case as the Supreme Court did in Lokpobiri v. Ogola (2016) 3 NWLR (PT 1499) 328 when a not too dissimilar thing happened when litigants approached two different Divisions of the same Federal High Court on the same issue.”Per UGO, J.C.A. (Pp. 44-48, Paras. C-D).
- COURT – COURT OF CO-ORDINATE JURISDICTION: Nature and jurisdictional synergy that should exist between Courts of co-ordinate jurisdiction
“Instructively, there is the Supreme Court case of Nigeria International Merchant Bank Ltd. v. Union Bank of Nig. Ltd. (2004) 12 NWLR (Pt.888) 599 at 618-619 per the lead judgment prepared by Pats – Acholonu, J.S.C., which discussed, analyzed and observed on the nature and jurisdictional synergy that should be adhered to by Courts of co-ordinate jurisdiction in these words-
It is believed inelegant and a matter that would go against the grain of our procedural law for Courts of co-ordinate jurisdiction instead of endeavouring to shore up the jurisdiction of each other engage in a form of unsavoury competition. They ought necessarily to avoid a situation where the Court by its being less cautious exposes itself by the nature of the order it makes to ridicule and the majesty and aura of its pronouncements are either compromised or treated with ignominy as a non-issue by the confused parties and I dare say with the common citizenry……
Where a Federal Court is prayed to make an order that is diametrically or in conflict with a subsisting order of a State High Court in the context of the same subject matter and where equally identical or seeming identical prayers are sought, it should, in my view refuse to entertain…… To commence to make orders that strike violently at the heart of the order of the State High Court of well known co-ordinate jurisdiction is to lend a helping hand in causing confusion in our Courts by purporting unwittingly to appear to sit on appeal on the decision of a State High Court.
Indeed the damning situation does not portend astuteness and exercise of caution on the part of the Federal High Court, which by its stance had made an order that did violence to the order of the Lagos State High Court……. I fail to see the exceptional circumstance that would warrant a Court to naively appear to sit on appeal in a ruling of a Court of the same co-ordinate jurisdiction.” See also Witt & Busch Ltd v. Dale Power Systems Plc (2007) 17 NWLR (Pt.106) 1 at 25, Per Ogbuagu, JSC, thus-
“… in the absence of statutory authority or except where the judgment or order is a nullity, one Judge has no power to set aside or vary the order of another Judge of concurrent and co-ordinate jurisdiction …….”
See further Azuh v. Union Bank Plc (2014) 11 NWLR (Pt.1419) 580 at 609-610.
The Court below should have been slow in granting the order de-freezing the two accounts of the 1st respondent with the 2nd respondent which order had the direct effect of wiping out and has indeed wiped out the earlier order made by the Federal High Court Lagos, a Court of co-ordinate jurisdiction with the Court below (Federal High Court Ado-Ekiti), freezing the said accounts of the 1st respondent with the 2nd respondent.”Per IKYEGH, J.C.A. (Pp. 64-66, Paras. C-E).
THE ECONOMIC AND FINANCIAL CRIMES COMMISSION v. MR. AYODELE FAYOSE & ANOR (2018) LPELR-44131(CA)