Application to Relist

Before Their Lordships

OLUKAYODE ARIWOOLA - Justice of the Supreme Court of Nigeria

JOHN INYANG OKORO - Justice of the Supreme Court of Nigeria

HELEN MORONKEJI OGUNWUMIJU - Justice of the Supreme Court of Nigeria

ABDU ABOKI - Justice of the Supreme Court of Nigeria

TIJJANI ABUBAKAR - Justice of the Supreme Court of Nigeria

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Between

GUARANTY TRUST BANK PLC - Applicant

And

INNOSON NIGERIA LIMITED - Respondent

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TIJJANI ABUBAKAR, J.S.C. (Delivering the Lead Ruling): This is a motion on notice filed on the 5th day of November, 2020, brought pursuant to Section 22 of the Supreme Court Act, 1960, Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and under the inherent jurisdiction of this Court, the application was filed on behalf of the Appellant/Applicant by learned Senior Counsel Aribisala, SAN. In the application, the Appellant/ Applicant seeks for the following orders:

1. An order setting aside the Ruling of this Honourable Court made on 27th February, 2019 dismissing the Appellant/Applicant/s appeal (appeal No. SC/694/2014) for want of diligent prosecution;

2. An order of this Honourable Court restoring the Appellant/Applicant's appeal (appeal No. SC/694/2014) which was dismissed for want of diligent prosecution on 27th February, 2019 to the cause list of this Honourable Court for hearing and determination on the merit.

AND for such further or other orders as this Honourable Court may deem fit to make in the circumstance.

The grounds for the application as set out the motion paper filed on the 5th day of November, 2020 are as follows:

1. On 5th May, 2014, the Court of appeal granted the appellant/ applicant leave to appeal its judgment in suit No. CA/1/258/2011 which was delivered on 6th February, 2014, Coram Hon. Justice Monica Bolna'an Dongban-Mensern/ Chidi Nwaoma Uwa and Obietonbara Daniel- Kalio JJCA.

2. Pursuant to the entry of the record, in this Honourable Court, on 25th October, 2014, the appellant/ applicant filed an appellant's brief of argument dated 5th June, 2015 which was subsequently regularised by this Honourable Court and deemed properly filed and served.

3. The said appellant's brief of argument has neither been withdrawn by the appellant nor has same been struck out by the Honourable Court, hence the brief is still pending before this Honourable Court.

4. This Honourable Court in its Ruling delivered on the 12th May, 2017, granted the appellant/applicant leave to amend its Notice of Appeal.

5. In furtherance of the above, appellant/applicant promptly filed an amended Notice of Appeal dated 26th May, 2017.

6. The appellant/applicant further filed an amended appellant's brief of argument dated 22nd June, 2018 on the 25th June, 2018

7. The appellant's amended Notice of Appeal dated 26th May, 2017 as well as its corresponding brief of argument dated 22nd June, 2018 are both before this Honourable Court and were duly served on the respondent/respondent.

8. The erstwhile counsel to the appellant/applicant/ Kemi Pinheiro S.A.N of the firm of Pinheiro LP, failed file any counter affidavit in opposition to the respondent respondent's Motion on Notice dated 8th January, 2018, seeking to dismiss the instant appeal.

9. The appellant/applicant's erstwhile counsel on record, Kemi Pinheiro S.A.N of the firm Pinheiro LP never informed the appellant/applicant of the pendency of the respondent/respondent's motion on Notice dated 8th January, 2018.

10. The appellant/applicant was never served directly with any hearing notice for the hearing of the respondent/respondent's motion on notice dated 8th January, 2018.

11. The appellant/applicant was oblivious of the fact that its erstwhile counsel on record, Kemi Pinheiro S.A.N of the Firm of Pinheiro LP never responded to the respondent/respondent's motion on notice dated 8th January, 2018.

12. The instruction/brief from the appellant/applicant to its erstwhile counsel was to prosecute this appeal diligently and holistically and not to fail and/or refuse to respond to any application which may affect the appellant/applicant's interest adversely.

13. The appellant/applicant had a bonafide appeal as at the time this Honourable Court was misled into dismissing this appeal on 27th February, 2019 for want of diligent prosecution as the appellant's original brief of argument dated 5th June, 2015 and the amended appellant's brief of argument dated 22nd June, 2018 were still pending before this Honourable Court having not been withdrawn by the appellant nor struck out by this Honourable Court before the said order of dismissal was made before this Honourable Court.

14. There was a failure by the Court's registry to bring the foregoing facts, concerning the appellant's brief of argument to the notice of the justices of this Honourable Court when they made the order of dismissal of the appeal for want of diligent prosecution as it was later discovered that the registry did not put the original case file of the appeal, which contained the said appellant's briefs of argument (the original and amended), in the temporary file.

15. The Honourable justices were presented with a temporary case file purportedly opened for the appeal by the registry, which did not contain the said appellant's brief of argument and other requisite process, thereby misleading the Honourable justices into making the order of dismissal of the appeal for want of diligent prosecution.

16. Despite being aware of the existence of a valid brief of argument filed for, and on behalf of the appellant/applicant/ the respondent/respondent failed and refused to withdraw its motion on notice dated 8th January, 2018 seeking to dismiss this appeal.

17. The filing of the respondent/respondent's motion on notice dated 8th January, 2018, ab initio, was calculated at confusing this Honourable Court as same was baseless and amounted to abuse of Court process.

18. The respondent/respondent created and engendered the confusion that led to the dismissal of this appeal by this Honourable Court.

19. The appellant/applicant's erstwhile counsel on record, Kemi Pinheiro S.A.N of the firm Pinheiro LP actually filed an application dated 28th March, 2019, seeking to restore this appeal to the cause list.

20. The appellant/applicant's erstwhile counsel on Record, Kemi Pinheiro S.A.N's application dated 28th March, 2019, seeking to restore this appeal to the cause list was not given a date for hearing before he was debriefed by the appellant/applicant.

21. It is settled that mistakes, inadvertence and negligence of counsel will not be visited on the litigant in deserving situations as the instance one,

22. It is also settled that mistakes, errors or omission, committed by the registry would not be visited on an innocent litigant who has done what he was required to do by law, in the appeal as in this case.

23. The appellant/applicant has never been indolent in the prosecution of this suit, right from the trial Court, up and until the current appeal.

24. The appellant/applicant regularly requested for updates from its erstwhile counsel, Kemi Pinheiro S.A.N of Pinheiro LP in order to keep it abreast of this appeal but non of the updates reflected the pendency of the respondent's motion on notice dated 8th January, 2018, seeking to dismiss this appeal.

25. A combination of the proceeding grounds caused the appellant/applicant to debrief its erstwhile counsel, Kemi Pinheiro S.A.N and engaged another counsel, Chief A.A Aribisala S.A.N of A.O.S practice on 16th July, 2019 in his stead for the prosecution of this appeal.

26. It will be against the-overall interest of justice and the constitutional rights of the appellant to fair haring if the lapses, errors, mistal<es or omissions of the registry are visited on the appellant, in the circumstances of this case.

27. This Honourable Court has the inherent jurisdiction to set aside its said decision of 27th February, 2019, where circumstances demand, as in this case, where the Court was misled into dismissing the appeal for want of diligent prosecution.

28. It is in the interest of justice that this appeal be heard on the merit.

Appellant's/Applicants application is supported by 43 paragraph affidavit sworn to by Nicholas lgwebuike, legal Practitioner, employee of the Appellant Applicant. The application is also supported by a written address. The Respondents also filed counter affidavits and written address.

On the 18th October, when the motion was heard, learned Senior Counsel for the applicant Chief Aribisala SAN moved the motion on notice, stating that the application which was filed on the 5th day of November, 2020 is seeking to restore the appeal No. SC/694/2014 dismissed for want of diligent prosecution by this Court. Learned senior counsel maintained that the application is supported by 43 paragraph affidavit, the application is also accompanied by exhibits. He urged this Court to grant the application as prayed.

Learned Senior Counsel for the Respondent Professor J.N.M Mbadugha SAN, in opposing the application on behalf of the Respondent submitted that he filed counter affidavit and written address on the 9th day of March, 2021 and 8th July, 2021 respectively. Learned counsel urged the Court to dismiss the application.

The learned senior counsel for the Respondent in his written address, raised preliminaries issues, contending that this Court has no jurisdiction to entertain the applicant's motion on notice seeking to restore the appeal.

Learned Senior Counsel Mbadugha SAN argued the preliminary issues under the following sub-headings;

a) Order striking out being a final decision and a bar to re- litigation.

b) Abuse of process

c) Incompetent appeal and no jurisdiction to entertain it.

d) Academic exercise.

e) Estoppel

f) Functus officio.

In arguing the preliminary issues under the sub headings, the learned Senior counsel submitted that it is the law that a decision striking out or dismissing a case upon its withdrawal when the point of litis contestatio has been reached is a final decision and a decision on the merit as well. Counsel cited the cases of ERONIMI V. IHEWKO (1987) 2 NWLR (Pt. 101) SC 46 at 681 and NWAKEDI V, R.T.A LTD (2002) 6 NWLR (Pt. 762) 181 at 197 to support his argument.

On abuse of Court process, learned counsel submitted that the applicant's application is seeking to re-litigate an issue already determined between it (applicant) and the Respondent by this Court. Thus the present application is nothing but an abuse of Court process. Counsel cited ASSOCIATED ELECTRONIC AND GAS LTD. V. EUROPEAN REINSURANCE CO. ZURICH (2003) W.L.R 1041.

Learned Senior counsel also submitted that where a necessary party to an appeal or a party who would be affected by the outcome of an appeal is not included in the appeal that mal<es the appeal incompetent. Counsel cited IHEDIOHA V. OKOROCHA (2016) 1 NWLR (Pt. 1492) SC 147. Counsel further argued that the applicant having failed to include the names of the parties to the suit/garnishee proceedings in the appeal both at the Court of appeal and Supreme Court rob this Court of its jurisdiction to entertain this matter.

On the issue of Estoppel and functus officio, Senior Counsel cited the cases of ONYEABUCHI V. INEC (2002) 8 NWLR (Pt. 769)417, CHUKWUKA V. EZEUIKE (1986) 5 NWLR (Pt. 45) AND KRAUS THOMPSON V. NIPPS (2004)17 NWLR (Pt. 901) 44 to submit that a decision of this Court striking out or dismissing an appeal for want of diligent prosecution is final, thus, in as much as the applicant is estopped from bringing this action again, this Court becomes functus officio after delivering the ruling striking out the appeal.

I must at this stage state it clearly that the Respondent decided to pre-empt the hearing of the application by setting out what he tagged preliminary issues. From all indications, the preliminary so styled by the Respondent constitute answer to the application, a little patience on the part of the Respondent would have provided them his answer to the application, the preliminary issues are hasty and premature, they amount to putting the cart before the horse, they are hereby over ruled, more so the Respondent has provided elaborate response to the application, if the preliminary issues are determined, so doing will render his response to the substantive application hollow. I will proceed to deal with the application on the merit.

In the written address filed by learned Senior Counsel for the Applicant, Counsel crafted the following two issues for determination, they are:

1. "Whether, based on the facts elicited in the affidavit in support of the appellant/applicant's motion on notice, this instant application is meritorious and this honourable Court ought to grant same

2. Whether mistakes, inadvertence or negligence of counsel should be visited on an innocent litigant."

Opposing the application, learned Senior Counsel for the Respondent submitted two issues for determination, the issues are also reproduced as follows:

1. "Whether in the light of the affidavit evidence the Court will dismiss the motion.

2. Whether when counsel is the mouth piece of the litigant and acted within his professional competence a question of his acts therein being a sin that cannot be visited on the litigant will arise."

The issues nominated for determination by both Counsel are seemingly similar and may all be collapsed into Applicants Issues for determination, I will therefore adopt the applicant's issues as the issues to be resolved in the determination of this application. I will therefore proceed to determine the issues.

ISSUE ONE

Applicants issue for determination number one is whether, based on the facts elicited in the affidavit in support of the appellant/applicant's motion on notice, this instant application is meritorious and this honourable Court ought to grant same.

Learned counsel commenced his argument on this issue by contending that this Court is vested with ample powers by virtue of the provisions of Section 22 of the Supreme Court Act/ Laws of the Federation of Nigeria, 2004 and several decided cases, this Court is empowered to set aside its ruling delivered on the 27th day of February, 2019. Learned Senior Counsel also relied on the decision of this Court in EDE V. MBA (2011) 18 NWLR (Pt. 1278) 236 at 262, to contend that by the provisions of Section 22 of the Supreme Court Act, and Order 8 Rule 16, this Court is vested with sufficient powers to set aside in certain circumstances its decision where any of the parties obtained judgment by fraud or deceit, where such decision is a nullity or where it is obvious that the Court was misled into giving the decision under wrong belief that the parties consented to it.

Learned Senior Counsel for the Applicant contended that from the provisions of the rules under which the Respondents application was brought, Order 6 Rule 3(2) and Order 6 Rule this Court is only empowered to exercise its powers to strike out an appeal where there is no appeal at all or where the Appellant's brief of argument was filed out of time and there is no application to regularise such irregularly filed Appellant's brief of argument.

Learned Senior Counsel for the Appellant maintained that in this case, there were two subsisting Appellant's briefs of argument before this Court. The briefs are exhibits AOS 2 and AOS 6. Counsel submitted that it is therefore inconceivable that the Respondent misled this Court in to believing that there was no valid appeal before the Court.

Learned Senior Counsel therefore contended that the order of this Court made on the 27th day of February, 2019, dismissing the Appellant's/ Applicants appeal was made without jurisdiction. Learned Senior Counsel again relied on the decision of this Court in EDE V. MBA (Supra).

Learned Senior Counsel contended that the Respondent concealed material facts in filing the application dated 8th January, 2018 and misled this Court that there was no valid and subsisting appeal and therefore sought for the dismissal of the appeal. The learned senior Counsel for the Applicant therefore contended that the Applicant had established a legitimate claim to the restoration of the appeal having successful shown that this Court was misled into giving the ruling of 27th February 2019. Learned Senior Counsel for the Applicant demonstrated that, the Registry of the Court misled this Court by bringing before it a temporary filed which did not contain all the relevant processes filed by the Appellant/Applicant, this was done by the registry instead of bringing the original case containing the processes, learned Senior Counsel therefore urged this Court to grant the application.

Learned Senior Counsel for the Applicant, contended that from the facts and circumstances that led to the dismissal of the Appellant's appeal, this application falls under those exceptional circumstances where this Court can set aside its earlier decision. Counsel also cited the case of ADEGOKE MOTORS LTD V. DR. ADESANYA & ANOR, (1986) 3 NWLR (Pt 109) 250 at 274 to submit that the Supreme Court has the power to overrule itself and has done so in the past. He therefore urged this Court to grant the application as prayed.

On the part of the learned Senior Counsel for the Respondent, Professor JNM Mbadugha submitted that the Appellant's brief of argument filed on 5th June, 2015 was filed out of time and was not served on the Respondent, learned Senior counsel further submitted that, even if there was service, it was on Sunday which is a public holiday and which renders the service invalid relying on Section 15 of the Interpretation Act, and Sections 2(3) and 4 of the Public Holidays Act CAP 378, LFN. Again, counsel submitted that the Applicant's motion filed on the 5th of June, 2019 to regularise the brief was struck out, hence the Applicant has no valid brief filed. The Applicant also abandoned its brief filed on 5th June, 2015 when it filed the one of 25th June, 2018. Learned counsel submitted that the Appellant did not serve the respondent with any motion to regularise its brief filed on the 5th June, 2015 out of time. Learned Senior Counsel submitted again that, the Appellant did not pay the filling fee for its motion to regularise its brief filed on 5th June, 2015 and as such this Court has no jurisdiction to entertain or to determine the application, Learned Senior Counsel relied on OKOLO V. U.B.N LTD. (2004)3 NWLR (Pt. 859) 87 AND ONWUGBUFOR V. OKOYE (1996) 1 NWLR (Pt. 424) 252 to support his argument.

Learned Senior counsel submitted that on the 30th day of January, 20181 they filed a motion on notice praying the Court to dismiss the appeal for want of diligent prosecution and being an abuse of Court process. The said motion was served on the Appellant but did not file counter affidavit.

Learned Senior Counsel for the Respondent also said the contention of the Appellant that the Respondent misled the Court that there was no valid appeal and that the Respondent concealed material facts is not true. Learned Counsel said the Respondent's application to dismiss the appeal was on the basis of lack of diligent prosecution and not whether there was valid and subsisting appeal or not.

On the issue whether this Court has jurisdiction to determine the appeal, learned Senior counsel argued that by paragraph 11, 11.1 and 12 of the counter affidavit, the Respondent has shown that its application of 30th January,2018 was not heard using any temporary file or a file that did not contain al! the relevant processes filed at all material times, the registry did not create any temporary file and that the issue of temporary file was self-induced and or self-created by the Appellant, and that the registry did not mislead the Court. Learned Senior Counsel also relied on the decision in EDE V. MBA (supra). Still on the issue of temporary file, learned counsel maintained that assuming without conceding that temporary file had been used, the temporary file had all the processes filed at all material times in the appeal and that there is nowhere in the affidavit where the Appellant showed that the temporary file contained only the processes filed by the Respondent. Learned Counsel therefore urged this Court to dismiss the application.

ISSUE TWO

Learned Senior counsel for the Appellant/Applicant submitted that a careful perusal of paragraphs a-e of the affidavit in support of the application would reveal that the Appellant had a subsisting appeal as at 27th June, 2019 when this Court inadvertently dismissed the appeal. That the only shortfall on the part of the erstwhile counsel for the Appellant was the fact that he did not file counter affidavit to the Respondent's motion on notice which prompted the Court to take the motion in chambers and not the open Court, acting on the premise that the application was not contentious.

Learned Senior Counsel relied on the decision in AFOLABI FAJEBE & 1 OR V. ISAAC ADEBAYO OPANUGA (2019) 5 NWLR (PT. 1664) 149 to argue that the fault of counsel or inadvertence cannot be an obstacle to a helpless litigant in such a way as to deny him the right to ventilate his grievance.

Learned counsel submitted that the only reason why the appeal was dismissed was as a result of filing error by the registry of this Court which could have been avoided by due diligence from the part of the erstwhile counsel of the Appellant. Learned counsel cited the cases of WASSAH V. KARA (2005) 4 NWLR (Pt. 1449) 374, ALHAJI ATIKU & 2 ORS V. ALHAJI UMARU MUSA YARADUWA & 5 ORS. (2008) 4 NWLR (Pt. 1078) 465 AND OGUNDOYIN & ORS V. ADEYEMI (2001) LPELR- 2335 (SC).

On the part of the Respondent, learned Senior counsel for the Respondent submitted that the law is settled that a counsel once instructed has full control on how to carry out his instructions, he is the mouth piece of his client and can even compromise his client's case. On this, counsel cited the case of ADEWUMI V. PLASTER NIG. LTD. 17 (1986) 3 NWLR (Pt. 32) 767. Learned counsel said that the Appellant's former counsel is a senior Advocate of Nigeria- Kemi Pinheiro and at all material times had full control over how to carry out his instructions and was also the mouth piece of the applicant.

Learned Counsel said the principle of law that sin of counsel should not be visited on the litigant shall not be applied to foist injustice. Counsel relied on N.N.P.C V. SAMFADEK & SONS NIG. LTD (2018) 7 NWLR (Pt. 1617) AT 10-11.

Learned counsel also cited the case of ANYADIKE V. OMEHIA (2010) 11 NWLR (Pt. 1204) 192 to submit that the said principle is not applicable to substantive matters such as in the instant case, and the case of N.N.P.C V. SAMFADEK & SONS NIG. LTD (supra) to argue that the principle does not apply in a case of abuse of process like in the instant case.

Learned Senior Counsel for the Respondent urged that the application be dismissed.

RESOLUTION

The two issues for the determination discussed in this appeal will again be collapsed and determined together. One of the reliefs sought in this application is for an order directing that the appeal dismissed on the 27th February, 2019, be relisted for hearing on the merit.

Order 8 Rule 16 of the Supreme Court Rules prohibits re- listing of a matter determined with finality. The said Order 8 Rule 16 reads as follows;

lithe Court shall not review any judgement once given and delivered by it, save to correct any clerical mistake or to vary, the judgment or order so as to give effect to its meaning or intention. A judgement or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted"

This rule has been interpreted by this Courtin seemingly endless judicial decisions. In particular, the rules that govern setting aside of a decision have been carefully set out by this Court in several decisions, in AMALGAMATED TRUSTEES LTD V. ASSOCIATED DISCOUNT HOUSE LTD. (2007) LPELR-454 (SC). This Court held as follows:

"In a number of decided authorities of this Court, the general principles in setting aside the judgment of this Court, have been stated and re- stated. In other words, yes, this Court can set aside its judgment, in appropriate cases, when certain things are shown, otherwise, the decision of this Court is final. See the cases of Onwuka & 4 Ors v. Maduka & 4 Ors (2002) 9 SCNJ 113 at 121, (2002) 18 NWLR (Pt. 799) 386; and Okulate & 4 Ors v, Awosanya & 2 Ors (2000) 1 SCNJ 75, (2000) 1 SC 107 at 112-113; (2000) 2 NWLR (Pt. 646) 530. In the case of S. N. Ibe v. Peter Onuora (1996) 12 SCNJ 128, the finality of the decisions of this Court pursuant to Section 215 of the Constitution of the Federal Republic of Nigeria, 1979, was restated See also the case of Alhaji Alao v. African Continental Bank Ltd. (2000) 9 NWLR (Pt.672) 264 at 283; (2000) 6 SCNJ 63 at 77; (2000) 6 SC (Pt.1) 27 at 36. As a matter of fact, Order 8 Rule 16 of the Supreme Court Rules, 1985 and the three principles enshrined therein, demonstrates unequivocally, a clear prohibition on the interference subsequently with the operative and substantive of a judgment of this Court or any part thereof except under the Slip Rule. It is therefore, now firmly settled that judgments of this Court cannot be reviewed. The Court has no power to overrule, reverse or nullify its previous decisions whether on questions of substantive or procedural law. See the cases of Adefulu & 16 Ors v. Chief Okulaja & 6 Ors (1998) 5 NWLR (Pt.550) 435 at 462; (1998) 4 SCNJ 139 147 and Owunari Long-John & Chief Iboroma & 2 Ors v. Chief Blakk & 2 Ors (1998) 6 NWLR (Pt. 555) 524; at 546; (1998) 5 SCNJ 68 at 86. I note that the respondent/applicant in paragraph 4.1.1 of its written address, concedes this firmly established principle and has stated rightly in my view, that the Court has inherent powers to set aside its judgment in a number of circumstances which it also stated and cited and relied on some other decided authorities in respect thereof i.e. Alao v. ACB Ltd. (supra); Chime & Anor v. Ude & Ors (1996) 7 NWLR (Pt. 461) 379 at 414 (it is also reported in (1996) 7 SCNJ 81; Ogbu v. Urum (1981) Vol. 12 NSCC 81 at 88, (1981) 4 SC 1; Skenconsult v. Ukey (1981) Vol. 12 NSCC 1 at 16- 17, (1981) 1 SC 6; Chief Igwe & Ors v. Chief Kalu & Ors (2002) 14 NWR (Pt.787) 435 at 435-455 (sic) (it is also reported in (2002) 2 SCNJ 126) and Obimonure v. Erinosho (1966) 1 All NLR 250 at 252-254. I will add some other cases in which this Court has restated the grounds under which it will depart from and overrule its previous decisions or its own judgment set aside. See Samuel Oke v. Lamidi Aiyedun (1986) 4 SC 61, (1986) 2 NWLR (Pt. 23) 548; Ukpe Orewere & Ors v. Rev. Moses Abiegbe & Ors (1973) 1 All NLR (Pt.11) 1 and The Attorney General of the Federation v. Guardian Newspaper Ltd. (1999) 5 SCNJ 324 at 404; (1999) 9 NWLR (Pt. 618) 187 citing several other cases therein. The reason or rationale behind this power was graphically or beautifully stated by Oputa, JSC in the case of Adegoke Motors Ltd v. Dr. Adesanya & Anor (1986) 3 N WLR (Pt. 109) 250 at 274; (1989) 5 SCNJ 80, inter alia, thus; "We are final not because we are infallible; rather we are infallible because we are final, Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned Counsel that any decision of this Court has been given per incuriam, such Counsel should have the boldness and courage to ask that such decision shall be over-ruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to preserve an error.

The Supreme Court has inherent powers to alter or amend its own orders on the ground that the order or judgement did not present what it had intended to record. In my humble understanding therefore, this Court under Order 8 Rule 16 has the power to set aside in certain circumstances its decision like any other Court where there are compelling reasons so to do, such as; where any of the parties obtains judgment by fraud or deceit, where such a decision is a nullity or where it is obvious that the Court was misled into giving a decision under a wrong belief.

This Court also repeated its position in ALAO V. A.C.B LTD, (2000) LPELR-408 (SC), where this Court held as follows and I quote:

"By Section 215 of the Constitution, 1979, (now Section 235 of the Constitution, 1999) the decision of the Court is final. However, Rules of Court have been made under Section 216 of the 1979 Constitution enabling the Supreme Court to review or vary its judgment in certain circumstances. The Supreme Court has no power to review its judgment once delivered - See Ashiyanbi & Ors v. Adeniji (1967) 1 All NLR 82, Minister of Lagos Affairs, Mines & Power & Anor. v. Akin Olugbade & Ors (1974) 1 All NLR (Pt.2) 226, Iro OgbU & Ors v- Ogburu Urum & Ors (1981) 4SC 1. After dismissing an appeal under Order 8 Rule 8 it has no power to entertain an application to re-enter the appeal. See Chukwuka & Ors v, Ezulike (1986) 5 NWLR (Pt.45) 892 - I have already reproduced in this judgment the provisions of Order 8 Rule 16, Rules of the Supreme Court, 1985 (as amended) which enable this Court to review its decisions in certain circumstances. This rule is in pari materia with the provisions of Order 7 Rule 29 Federal Supreme Court Rules. In Ashiyanbi v. Adeniji (1967) I All NLR 82, where Order 7 Rule 29 Rules of the Supreme Court 1960 was considered, this Court clearly stated that it possesses the power subject to appropriate safeguards where the justice of the case so requires, to correct or amend the terms of its own orders of judgments to effect such variations therein to carry out the meaning intended by the judgment."

It is now clear that this Court has the power to review its decision where the judgment was obtained by fraud or the judgment was a nullity such as when the Court was not competent, when the Court was misled into giving judgment under a mistaken belief that the parties have consented to it, when judgment was given without jurisdiction, or where the procedure adopted was such as to deprive the decision or judgment the character of a legitimate adjudication.

See also: SKENCONSULT NIG. LTD. V. UKEY (1981) 1 SC 6, OJIAKOR V. OGUEZE (1962)1 ALL NLR 58 1 SCNLR 112, IGWE V. KALU (2002) 14 NWLR (Pt. 787) 435.

The Learned senior Counsel for the applicant submitted that this Court on the 27th February, 2019 dismissed the applicant's appeal on the erroneous impression that the appellant's brief of argument had not been filed. He argued further that the Appellant's brief of argument was in fact filed on the 25th June, 2015. Counsel further contended that there was failure by the Registry of the Court to bring to the notice of the Court that the Appellant's brief of argument had been filed. At this stage it is important to examine again the grounds for the application and the depositions made in the affidavit in support of the application sworn in by one Nicholas Igwebuike. I will in particular reproduce the grounds for the application 13, 14 and 15. They are reproduced as follows:

13. The appellant/applicant had a bonafide appeal as at the time this Honourable Court was misled into dismissing this appeal on 27th February, 2019 for want of diligent prosecution as the appellant's original brief of argument dated 5th June, 2015 and the amended appellant's brief of argument dated 22nd June, 2018 were still pending before this Honourable Court having not been withdrawn by the appellant nor struck out by this Honourable Court before the said order of dismissal was made before this Honourable Court.

14. There was a failure by the Court's registry to bring the foregoing facts, concerning the appellant's brief of argument to the notice of the justices of this Honourable Court when they made the order of dismissal of the appeal for want of diligent prosecution as it was later discovered that the registry did not put the original case file of the appeal, which contained the said appellant's briefs of argument (the original and amended), in the temporary file.

15. The Honourable justices were presented with a temporary case file purportedly opened for the appeal by the registry, which did not contain the said appellant's brief of argument and other requisite process, thereby misleading the Honourable justices into making the order of dismissal of the appeal for want of diligent prosecution."

I also consider paragraphs 5-8 of the affidavit in support of the application sworn to by Nicholas lgwebuike relevant. They are also reproduced as follows:

5. in furtherance of the above, the appellant/applicant filed its appellant's brief of argument dated 5th June, 2015.

6. the appellant/applicant's brief of argument dated 5th June, 2015 which was filed out of time, was deemed properly filed and served by this Court based on the appellant/applicant's motion on notice dated 5th June, 2015.

7. the appellant/ applicant's brief of argument dated 5th June, 2015 was duly served on the respondent/respondent's counsel on the 7th June, 2015 at its Abuja Address.

8. the appellant/applicant Is brief of argument dated 5th June, 2015, was never withdrawn by the appellant nor struck out by this Court.

From the above grounds for the application and averments in the affidavit in support of the application, and the reaction of the Respondent in its counter affidavit. I am convinced that at the material time the Appellants appeal was inadvertently dismissed by this Court, there was in place a valid and subsisting brief of argument filed by the applicant. It will be unjust to visit the sin of the Registry on an innocent, vigilant, proactive and diligent litigant. It is obvious from the materials before us that there were errors committed by the registry of this Court, having failed to bring to the notice of the Panel of Justices that sat in chambers on the 27th day of February, 2019 that the Appellant had indeed filed its brief of argument. This is a case deserving of positive consideration by this Court. It is part of fallibility and the attributable human imperfection in us to quickly admit that indeed there was mistake and the mistake was that of the registry and not the litigant, God forbid the day the Court will stumble across crass injustice and maintain bold face in the name of maintaining and sustaining our finality in the hierarchy of Courts.

This Court in COOPERATIVE AND COMMERCE BANK NIG. LTD. PLC V. ATTORNEY GENERAL ANAMBRA STATE & ANOR (1992) 8 NWLR (Pt. 261) 528 at 561 held as follows;

"it will be contrary to all principles to allow litigants to suffer for the mistake of the Court registry. In other words, the Court will not visit the sin of the Court's registry on a litigant or his counsel, unless, it was shown that the litigant or his counsel was a party thereto or had full knowledge of the sin or mistake and encouraged or condoned the said act. Therefore, on the authorities, justice, equity, fairness and good conscience, must persuade me, to hold further that this appeal deserves to succeed and it in fact does."

The law is well settled and we will continue to solidly stand behind the law, equity and good conscience to ensure that we sustain the will and courage to correct errors committed by the Court or its registry, it is only by so doing we will instill confidence in Court users that nobody is perfect, so doing will also rekindle the hope of the ordinary man in the dignity and impartiality of the Courts. Similarly, on the issue of mistake or inadvertence of counsel, the law is well settled that the sin of counsel, characterized by negligence or inadvertence must not be visited on a litigant, except in extreme circumstances where it is established that the litigant has deliberately or tacitly aided or contributed to the condemnable dereliction on the part of Counsel, in the instant case I find none. See EFP CO. LTD VS. NDIC (2007) 9 NWLR (pt. 1039) at 229 and MAINS VENTURES LTD V. PETROPLAST IND. LTD (2000) 4 NWLR (pt. 651) 151.

Once a party, such as the applicant herein has performed his own responsibility and satisfied what he is required to do by law to fulfil in instituting an action, he must not be made to suffer the failure, blunders or omissions of either the registry or his counsel.

Having gone through all the materials in this application therefore, I am satisfied that the Appellants/Applicants brief of argument was filed before the order of this Court made on the 27th day of February, 2019, dismissing the Appellants appeal. The order dismissing the appeal was therefore made in error, it ought not have been made if all the materials were fully and sufficiently disclosed. The Application is therefore meritorious and succeeds, it is hereby granted, and the following orders are hereby made:

1. The Ruling of this Court delivered on the 27th February, 20191 dismissing the Appellants appeal is hereby set aside.

2. It is hereby ordered that appeal No. SC/694/2014 be re- listed to constitute an integral part of the business of this Court for hearing and determination on the merit.

Parties shall bear their respective costs.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead ruling of my learned brother Tijjani Abubakar, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead ruling that the application is meritorious and deserves to be granted. Accordingly, it is granted by me.

Application granted.

JOHN INYANG OKORO, J.S.C.: I am in agreement with the ruling just delivered by my learned brother, Tijjani Abubakar, JSC, which I had a preview before now.

The main plank of this application is that this Court was misled into dismissing the Appellant's appeal for want of diligent prosecution whilst its valid notice of appeal and amended Appellant brief of argument dated 22/6/2018 were still pending before the Court. Having realized the mistake, it behooves us to admit our error and restore the appeal and have it determined on the merit.

My Lords, permit me to restate the words of Oputa, JSC in the case of Adegoke Motors Ltd v Dr. Adesanya (1986) 3 NWLR (pt 109) 250 at274; (1989) 5 SCNJ 80 as follows:-

"We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such decision shall be over-ruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to preserve an error."

It would therefore amount to a miscarriage of justice to allow a litigant, who has performed his own part of responsibility of what is required to have his appeal heard on the merit, to suffer for a mistake committed not by him, but by either the registrar of the Court or his counsel. See Ede v Mba (2011) LPELR - 8234 (SC); Co-operative Commercial Bank Plc v Attorney General Anambra State & Anor (1992) LPELR - 875 (SC); (1992) 8 NWLR (pt. 261) 528 at 561; Famfa Oil Ltd v Attorney General Federation (2003) LPELR - 1239 (SC). In the case of Wassah & Ors v Kara & Ors (2014) LPELR - 24212 (SC), I said something instructive which I shall reiterate that where there is an obvious mistake by the Court which has led to a miscarriage of justice, I think the Court should be humble enough to accept its mistake and make amends appropriately. I still stand by that firm conviction. In this case, the only amends available to this Court in the circumstance is to grant the application and restore the appeal of this Applicant previously dismissed on 27th February, 2019.

For the above and fuller reasons adumbrated in the lead ruling, I find this application to be meritorious and it is hereby granted as prayed. I abide by the orders in the lead ruling.

Application Granted.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading before now the ruling just delivered by my Learned brother TIJJANI ABUBAKAR, JSC. I agree with the reasoning and conclusion that this application has merit and should be granted.

The applicant herein seeks for orders setting aside the ruling of this Court made on 27th February, 2019 dismissing the applicant's appeal No.SC/694/2014 for want of diligent prosecution and restoring same on the cause list. It is the settled position of the law that a Court can only review its orders where the judgment was obtained by fraud, where the judgement was a nullity, where the Court mistakenly believed that the parties consented to it, where the Court lacked jurisdiction and where the procedure deprived the Court of its legitimacy.

In the circumstances of this case, the applicant had filed its brief of argument well before the appeal was dismissed for failure to do so. The Appellant/Applicant's brief was deemed filed on 215th June, 2015 while the appeal was dismissed for failure to file same on 27th February, 2019. The failure was patently that of the registry of this Court as the said brief was never withdrawn nor struck out for incompetence. My Lords, this case calls for intervention as the order of this Court made in Chambers dismissing the appeal for want of diligent prosecution offends the cardinal rule of fair hearing and that order is consequently a nullity. This Court will not allow a litigant to suffer from the mistake of its registry. See: CCB Ltd v. A.G. Anambra & Anor (1992) 5 NWLR Pt. 261 Pg. 528 at 561. For these reasons and others contained in the lead ruling, this application has merit and it is hereby granted. I abide by the orders in the lead ruling.

ABDU ABOKI, J.S.C.: I have had the privilege of reading before now, the Ruling of my learned brother TIJJANI ABUBAKAR, JSC, just delivered. I agree with the reasoning and conclusion that this application is meritorious and should be granted.

By a Motion on Notice, filed on the 5th of November, 2020, the Appellant/Applicant prayed this Court for the following reliefs:

1. AN ORDER setting aside the Ruling of this Honourable Court made on 27th February, 2019 dismissing the Appellant/Applicant's Appeal (Appeal No. SC/694/2014), for want of diligent prosecution.

2. AN ORDER of this Honourable Court restoring the Appellant/Applicant's Appeal (Appeal No. SC/694/2014) which was dismissed for want of diligent prosecution on 27tn day of February, 2019, to the cause list of this Honourable Court for hearing and determination on the merit.

The application was predicated upon 28 grounds, wherein it was stated thus, at grounds 13, 14 and 15:

13. The Appellant/Applicant had a bonafide appeal as at the time this Honourable Court was misled into dismissing this Appeal on 27h February, 2019 for want of diligent prosecution, as the Appellant's Original Brief of Argument dated 5th of June, 2015 and the Amended Appellant's brief of Argument dated 22nd June 2018 were still pending before this Honourable Court having not been withdrawn by the Appellant nor struck out by this Honourable Court before the said Order of dismissal was made before this Honourable Court.

14. There was a failure by the Court's Registry to bring the foregoing facts, concerning the Appellant's briefs of argument to the notice of the Justices of this Honourable Court when they made the Order of dismissal of Appeal for want of diligent prosecution, as it was later discovered that the Registry did not put the original case file of the Appeal, which contained the said Appellant's briefs of argument (the Original and the Amended), in the temporary file.

15. The Honourable Justices were presented with a temporary case file purportedly opened for the Appeal, by the Registry, which did not contain the said Appellant's Brief of Argument and other requisite processes, thereby misleading the Honourable Justices into making the Order of dismissal of the Appeal for want of diligent prosecution.

The Appellant/Applicant also filed a 43 paragraphed affidavit, deposed to by one Nicholas Igwebuike, a Legal Practitioner in the Law Firm of the Appellant/Applicant, with some annexures.

In response to this above, a 31 paragraph Counter affidavit deposed to by one Joe Onyebuenyi, was filed on behalf of the Respondent, with several annexures; the substance of which is that the Appellant/ Applicant had abandoned its appeal.

I have given a glimpse of some of the facts relied upon by the applicants above, I am of the opinion that once a party, such as the Applicant herein, has performed creditably his own portion of responsibility of what he is required by the law to fulfill, in instituting an action, he should not be made to suffer the failure, blunders, or omissions of the Court Registry. It will be inequitable to do so. By our law and practice, once a prospective party has properly made his claim as required by law and delivered same in the Registry, what is left to be done such as sorting out of the processes, giving them identification numbers for ease of reference; distributing such processes to the various Justices is the domestic responsibility of the Registry. The party has no more say on it except what the Court/Registry requires of him to do. See: Ede & Anor v. Mba & Ors (2011) LPELR 8254 (SC).

Thus, it will be unconscionable and against the interest of justice to penalize such a party for such errors, lapses, mistakes or accidental slips or omissions by administrative or clerical functions of the Registry.

It is for these and the more detailed reasons contained in the Lead Ruling of My Brother TIJJANI, JSC, that I find this application to be meritorious and it is hereby granted by me.

I abide by the consequential Orders in the Lead Ruling.

Appearances

CHIEF ARIBISALA, SAN, WITH HIM, MARTIN ALOAH, ESO, M.A. ARIBISALA, ESQ. AND O. ARIBISALA, ESQ. - For Applicant

PROF. J.N.M MBADUGHA, SAN, WITH HIM, LILIAN OGAH, ESQ. AND HEZIKIAH IVOKE, ESQ. - For Respondent

Judgment

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgement) : This is the ruling in respect of the motion on notice filed by the appellant/applicant on 15/6/2021 praying as follows: 1. “An Order for enlargement of time within which the Appellant/applicant may apply to this Court for an order relisting Appeal No. CA/EK/43/2021 between NAZEEDES BORNER NIGERIA LIMITED VS.

HONGYE AMIP CONCEPT LIMITED which was struck out on 23rd day of January, 2018 by this Honourable Court for failure of the Appellant to comply with the Order of the Court awarding cost to the Respondent on 19th of October 2015. 2. An Order of this Honourable Court relisting Appeal No. CA/EK/81/2014 Between NAZEEDES BORNER NIGERIA LIMITED VS. HONGYE AMIP CONCEPT LIMITED which was struck out on 23rd January, 2018 for failure to comply with the Order of Court made on 19th of October, 2015 directing the Appellant to pay cost to the Respondent. ​3.

An Order of this Honourable Court granting leave to the Appellant/applicant to file and argue an additional ground of appeal against the judgment of the lower Court in Suit No: HAD/40/2013 between HONGYE AMIP CONCEPT LIMITED VS NAZEEDES BORNER NIGERIA LIMITED delivered on 11th day of April, 2014 challenging the jurisdiction of the trial Court to entertain the matter. Prayers 4 and 5 of the application as reflected on the motion paper were withdrawn by the applicant and struck out.

The surviving prayers in this application are: (i) Prayer for extension of time to apply for relisting of Appeal No CA/EK/81/2014 (ii) Prayer for relisting of the said appeal (iii) Prayer for leave to file and argue additional ground of appeal against the judgment of the lower Court. ​The grounds of the application are as follows: 1. The appeal was struck out on the ground that the Appellant failed to comply with the orders of this Honourable Court made on 19th October, 2015 awarding cost in favour of the Respondent and against the Appellant. 2.

The Court’s orders as to cost were never brought to the attention of the Appellant company by its erstwhile counsel Izuchukwu Okorie, Esq. 3. The Appellant is desirous of diligently prosecuting this appeal and have therefore complied with the order of this Court by paying the costs awarded to the Respondent pursuant to which this appeal was struck out. 4. The appeal raises serious issues of jurisdiction as it relates to the competent of the writ of summons issued and served on the Appellant who resides outside jurisdiction without a leave to issue and serve. 5.

The Appellant/Applicant as soon as after having the knowledge of the position of this appeal has complied with the order of this Honourable Court as to cost, and is desirable of expeditiously pursuing the appeal. 6. The Appellant/Applicant had earlier filed similar application before this Honourable Court on 6th day of March 2020, but same was struck out on 14th May, 2021 for carrying the Appeal No. of the substantive Appeal already struck out by this Corut on 23rd January, 2018. 7.

The order of Court sought to be set aside is not a decision on the merits and the Court has the discretion to set same aside. The application is supported by 25 paragraph 3-10 and paragraph 14-21 of the affidavit in support of the Motion on Notice. ​ Learned counsel for the applicant, Olalekan Olatawura, adopted his written address in support of the Motion on Notice. He urged the Court to grant the application. The Respondent opposed the application by filing a 20 paragraph counter affidavit on written address prepared by A. O. OKEYA his counsel.

Most relevant of the averments in the counter affidavit are paragraphs 4, 7, 8, 11 – 15 of the counter-affidavit. Learned counsel for the Respondent, A. O. OKEYA filed written address on 16/12/2021 which was deemed filed on 8/3/2022. He based his argument on the issues proffered by the applicant and urged the Court to dismiss the application. I have deeply considered the submission of learned counsel on both sides. What conditions must an applicant fulfill before an application for extension of time within which an appellant may take procedural steps can succeed? MOHAMMED JSC in OLATUNBOSUN v.

TEXACO (NIG.) PLC. & ANOR (2012) LPELR-7805 (SC) CHIEF T. O. S. BENSON v.

NIGERIA AGIP OIL CO. (1982) 5 S.C. 1 explained it thus “There is no doubt that an application for an enlargement of time within which an Appellant may take certain procedural steps to succeed, all the applicant is required to do is to establish good substantial or exceptional reasons or circumstances, to explain satisfactorily the delay in taking steps the grant of the enlargement of time applied for.” The question to ask in this application is, has the applicant adduced good substantial or exceptional reasons for this application to be granted?

His reasons are:- i) Appeal No CA/EK/81/2014 was struck out on 23/1/2018 for failure to comply the Order of Court awarding costs on 19/10/2015. ii) A previous similar application before this application was filed on 6/3/2020 but struck out on 14/5/2021 for carrying the Appeal No. of the substantive appeal that was struck out on 23/1/2018. iii) One major cause of delay as can be gathered from paragraphs 7-12 of the affidavit in support is the lack of diligence on the part of its former counsel IZUCHUKWU OKORIE. ​The said paragraphs 7-12 of supporting affidavit state: “1.

That the Appellant/applicant perfected fully the brief of its erstwhile counsel, Izuchukwu Okorie, Esq. to handle the appeal to its logical conclusion at the Court of Appeal. 2. That I have kept contact and indeed constantly called our erstwhile in Court of which he has always obliged. 3.

That the erstwhile counsel, Izuchukwu Okorie, Esq. as a matter of fact did file and Appellant’s Brief on behalf of the Appellant/Applicant long before the appeal was struck out for non-compliance with the order of Court as to the awarded costs, which made this Honourable Court to find as a fact on 23/1/2018 that the issue of want of diligent prosecution was a non-issue. 4. That our erstwhile counsel has always given us the impression that everything was in order each time we call to get an update in respect of the pending appeal. 5.

That surprisingly, we were informed on the 22nd day of February, 2020 by one of our bankers (Zenith Bank) that there is a ganishee order Nisi attaching all the Appellant/Applicant accounts as a result of the execution of the judgment which is the subject of this appeal. 6. That further to the averment in para 11, I immediately placed over 20 calls to our erstwhile counsel Izuchukwu Okorie through his phone number 08033008259 in order to be properly informed of the state of affairs in relation to the proceedings in Court but we got no response from him”.

Learned counsel for the Respondent in his counter-affidavit did little in counter acting the allegation of the applicant as regard its lawyer, IZUCHUKWU OKORIE. See paragraphs 5, 6 – 9 of the counter affidavit. It seems clear to me in the circumstance that the delay of the applicant which has resulted in this application is largely as a result of the sin of its counsel. The sin of counsel should not be visited on his client. See SALEH v. MONGUNO (2006) 15 NWLR Pt. 1001 P. 26. According to PETER-ODILI JSC in OGUNPEHIN v.

NUCLEUS VENTURE (2019) LPELR – 48772 (S.C) “It is correct and indeed trite in law that parties are not visited with punishment arising from the mistake or inadvertence or negligence of counsel when the mistake or inadvertence of counsel is in respect of procedural matters in which case the Court would show interest and lean towards accommodating the parties determination of the case on the merits. See CBN v. AHMED (2001) 11 NWLR (PT. 724) 369 at 394; OGUNDOYIN v. ADEYEMI (2001) 13NWLR (1980) 5-7 SC. 42 at 52; BELLOW AKANBI v. MAMUDU ALAO (1989) 3NWLR (PT. 108) 118; BOWAJE v.

ADEDIWURA (1976) 6 SC. 143.” I am minded to allow the parties to ventilate their respective grievances in the interest of justice. I am satisfied with the reasons adduced by the applicant for the delay. It would be unfair to visit the sin of the applicant’s counsel on him in the circumstances of this case. In the circumstance, ORDER AS PRAYED in term of prayers 1 – 3 of the application i) Appeal No. CA/EK/81/2014 BETWEEN NAZEEDES BORNER NIGERIA LTD VS HONGYE AMIP CONCEPT LTD is hereby relisted. ii) Leave for the appellant to file appeal against the judgment of the lower Court in Suit No.

HAD/40/2013 BETWEEN HONGYE AMIP CONCEPT LTD. VS. NAZEEDES BORNER NIG. LTD delivered on 11/4/2014 challenging the jurisdiction of the trial Court to entertain the matter is hereby granted. Appellant is to file Amended Notice of Appeal in line with EXHIBIT F attached to the affidavit in support of motion on notice. I award N200,000 as cost in favour of the Respondent.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

ABDUL-AZEEZ WAZIRI, J.C.A.: I have been afforded a copy of the lead ruling prepared and delivered by TUNDE O. AWOTOYE, JCA before now. I am satisfied with my Lord’s reasoning and conclusion in granting the application in terms of prayers 1-3 on the face of the motion paper. I also abide by the consequential order made including the issue of cost awarded against the Applicant and in favour of the Respondent.