In Sokoto, BUA Becomes ‘Functus Officio’


The Advocate

Definition of Functus Officio and the General Rule

When does a court becomes ‘functus officio’ in a matter before it? In Mohammed v Husseini 1998 14 N.W.L.R. Part 584 Page 108 at 163-164, the Supreme Court held that “the Latin expression ‘functus officio’ simply means “task performed”. Simply speaking, when a Judge delivers a judgement on its merits, that is, having determined the legal rights of the litigants, he/she has performed his/her task and becomes functus officio in such a case. See the case of John Andy Sons and Co. Ltd v N.C.R.I. 1997 3 N.W.L.R. Part 491 Page 1; U.T.C. (Nig.) Ltd v Pamotei 1989 2 N.W.L.R. Part 103 Page 244. The trial Judge cannot change such a decision once it is made, or delve back into case. He/she lacks the jurisdiction to do so, as he/she has become functus officio, and can only make ancillary orders, for example, an order for the enforcement or stay of execution of the judgement, or order for the award of costs. See the case of Nnajiofor v Ukonu 1985 2 N.W.L.R. Part 9 Page 686. In such a situation, any party that is dissatisfied with the judgement, may appeal against the decision complained of.

Similarly, where there is a motion before a court in the course of a trial, that is, an application for an interlocutory order to be made by the court during the trial, maybe for an injunction to preserve the ‘res’, that is, the subject-matter of the suit so that it is not dissipated before the trial reaches its conclusion and the judgement is then rendered nugatory (of no value), and the court makes an order/gives a ruling; again, the trial Judge becomes functus officio, and the proper step for a dissatisfied litigant to take, is to appeal the ruling (interlocutory appeal). A Judge being functus officio means that he/she is not allowed to hand down any other decision on the same case – hand down a decision more than once, nor can he/she make a ruling on the same issue more than once. Oboroh v Oghuvwu 2000 3 N.W.L.R. Part 647 Page 120 at 127-128.

Though a ruling or order may not necessarily be the final judgement of a court, they are all decisions of a court. See the case of Contract Resources (Nig.) Ltd v S.T.B. Ltd 2013 6 N.W.L.R. Part 1350 Page 260 at 271 per Ogunbiyi JSC.

Exceptions to the General Rule

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The aforementioned position is the general rule, to which there are some exceptions. When the judgement is a default judgement, the Judge can set aside his/her decision. A default judgement is one in which the decision is handed down not on its merits, but as a result of the failure to follow the rules of procedure. For instance, judgement in default of appearance or defence (no memorandum of appearance or statement of defence is filed). A default judgement differs from a judgement on its merits, in that there is no argument, investigation and evidence, the legal rights of the parties are not determined; the judgement is handed down without trial based on “some preliminary or formal or merely technical point or by default….”. See the case of Udoh v Asuquo 2006 9 N.W.L.R. Part 985 Page 299 at 315. In Okokhue v Obadan 1989 5 N.W.L.R. Part 120 Page 185 at 204 Ogundare JCA (as he then was) stated thus: “A judgement is not given on the merits, when it is founded on some technical rule of procedure”; N.U.B. Ltd v Samba Pet. Co. Ltd 2006 12 N.W.L.R. Part 993 Page 98 at 126 per Rhodes-Vivour JCA (as he then was).

For example, the judgement that was set aside in the GTB v Innoson Supreme Court case which I mentioned last week, was a default judgement; one given because the Apex Court was misled to believe that a technical rule of procedure, that is, the of filing the Appellant’s brief of argument, was not followed in accordance with Order 6 Rule 5(1)(a) of the Supreme Court Rules, which provides that an Appellant shall file and serve on the Respondent his/her brief of argument within ten weeks of the receipt of the Record of Appeal. This provision is mandatory. When their Lordships discovered that the said court process was on file, they set aside their previous decision.

When a judgement is obtained by misleading the court (as in the GTB case)(be it a default judgement or one delivered on its merits), or the judgement is a nullity ab initio, or was obtained by fraud, the Judge can subsequently set it aside, and will not be functus officio in these circumstances. See Mohammed v Husseini (Supra). In Olufunmise v Falana 1990 3 N.W.L.R. Part 136 Page 1 at 10 per Obaseki JSC (Acting CJN) the court held that “a judgement obtained by fraud can be set aside on an action being brought afterwards”. However, proof that the judgement was secured by the fraud of one of the parties to the action, who would not have secured judgement but for the fraud, must be presented for such an action to set aside the judgement, to succeed.

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BUA Commissioning, Sokoto

I cannot but mention my first visit to the ancient city of Sokoto last Thursday; for the official commissioning of the new BUA 3 million Metric Tonnes Per Annum Line 4 Cement Plant, and the Groundbreaking for Line 5 (Sokoto) by the President of the Federal Republic of Nigeria, His Excellency, Muhammadu Buhari GCFR. This is because there is a complaint that many of us who enjoy the readership of the public, focus a great deal on negative occurrences in the country, instead of promoting Nigeria by highlighting positive and progressive events.

To say that the BUA Factory is impressive, is an understatement. BUA Group employs about 15,000 people directly and indirectly, in total. The cement side of the conglomerate employs about 5,000 Nigerians in its different cement facilities around the country, and almost half that number in Sokoto particularly. By the time BUA Cement Sokoto Line 5 and Edo Line 3 are completed in 2023, BUA will increase its staff strength significantly. This does not even touch upon the uncountable affiliated jobs that are being created particularly in Sokoto, because of this massive investment by BUA. This is besides BUA’s investments in technology and cleaner energy, using LNG at the cement factories that take environmental sustainability and operational efficiency into account. Kudos to Alhaji Abdul Samad Rabiu CON, the Founder and Chairman/CEO of BUA Group, who has shown his belief in the development and success of our motherland, by investing heavily here in Nigeria.

ASR and BUA Foundation

Though BUA is a commercial concern with the purpose of making profit (which is the goal of all business concerns), apart from not engaging in capital flight like so many others, it has not only created jobs for our people and put Nigeria on the map in terms of industrialisation, Alhaji Rabiu through his Foundations, the Abdul Samad Rabiu Africa Initiative (ASR), endowed with $100 Million annually by Alhaji Rabiu, and BUA Foundation, has provided succour to States across the nation by donating generously towards their healthcare, social development and educational systems, and to Nigerians all over the country, particularly at the height of the Covid-19 Pandemic in 2020. Nigeria would be a much better country, if more of our captains of industry give back to society like BUA, and not just take from it.

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So far, in the eight months of its operations, the annual $100 million Africa Fund for Social Development and Renewal of ASR, has already committed over N35 billion in grants to various healthcare, development, and educational projects through initiatives such as the recently completed 150-bed N4 billion Police National Reference Hospital in Abuja; an Oncology and Diagnostic Centre in Kwara; N5 billion Teaching Hospital in Akwa Ibom; a Mother and Child hospital in Ogun State; expansion of the Stella Obasanjo Specialist Hospital in Edo; construction of Schools of Nursing Science, Medical Science and Health Technology in Sokoto, as well as education infrastructure grants of N1 billion each to six premier Universities across Nigeria. Many of these projects have already commenced, and the annual $100 million grant is set to be renewed for another year, at the end of the current cycle. All these are in addition to BUA Foundation’s contributions of over N25 billion in cash, health infrastructure, foodstuff and equipment during the Covid-19 Pandemic in Nigeria, ranging from over 66 ambulances given to 19 States, and other initiatives including N1.35 billion to the CACOVID private sector coalition, comprehensive feeding programmes for 1.5 million people, 1 million face masks, PPEs and cash sums to at least nine States and the Presidential task force on Covid-19, at the climax of the Pandemic.

Well done BUA Group. Congratulations Alhaji Abdul Samad Rabiu aka ‘Alhaji BUA’ on these laudable milestones. Indeed, BUA has performed its task in Sokoto, commendably too, and has become functus officio after making a sound decision to invest, bring more development to Sokoto and Nigeria generally; and boost our nation’s economy. This decision is not a default judgement, but one based on the merits; there is no reason for this judgement to be set aside, nor should it go on appeal, or for review; unless it is of course, for ancillary orders to expand the Facility further to Line 6 and beyond, should the need arise.



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