ANOZIE v. IGP & ORS

CITATION: (2016) LPELR-40427(CA)

In the Court of AppealIn the Lagos Judicial Division

Holden at Lagos

ON THURSDAY, 28TH APRIL, 2016Suit No: CA/L/419/12(R)

Before Their Lordships:

SIDI DAUDA BAGE Justice, Court of AppealCHINWE EUGENIA IYIZOBA Justice, Court of AppealJAMILU YAMMAMA TUKUR Justice, Court of Appeal

BetweenVICTOR ANOZIE - Appellant(s)

And1) INSPECTOR GENERAL OF POLICE2) COMMISSIONER OF POLICE SPECIAL FRAUD UNITMILVERTON ROAD IKOYI3) ASST. INSPECTOR GENERAL OF POLICE (AIG) ZONE 11ONIKAN LAGOS4) IFEANYI OHAZURUME

- Respondent(s)

RATIO DECIDENDI

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1 ACTION - APPLICABLE LAW TO A SUIT: Which law is the applicable law toan action"The law is settled on the issue of commencement of action at the time itwas filed, the law that governs such an action is the law at the time of filingsuch an action and not the extant law prevailing after the commencement ofsuch an action. This position had, since been settled by the old SupremeCourt. See MUFUTAU ALAWODE & ORS v. M. A. SEMOH (1959) 4 FSC 27 atpages 29-30. The then F.S.C. stated as follows:"The test for thecommencement of an action both according to English rules and the localrules of Court appears to me to be this: has the Plaintiff done all that isrequired of him by law to commence this action? In England, all he has to dois to buy the writ and endorse it. In Nigeria, he has to make an application tothe registrar and pay the necessary fees. From then on, his responsibilityceases and what is left to be done is, a domestic affair of the Court and itsstaff. From the time the Plaintiff in Nigeria delivers his application to theRegistrar (provided it is not an action in which, the consent of the Court isnecessary before the writ is issued) and he pays the necessary fees it will, inmy view, be correct to say that an action or suit has been commenced.Thiscase involved a claim under the Fatal Accidents Act 1846 which requiresthat, action must be commenced within twelve calendar months after thedeath of the victim. The accident in this particular case occurred on August2, 1956. The writ of summons was filed on August 2, 1957. It was signed byon August 8, 1957. The defence submitted that, the action was statute-barred. The objection was over ruled on appeal to the Supreme Court."ThisCourt, the Court of Appeal followed this decision of the Supreme Court inSADIKU v. ATTORNEY GENERAL OF LAGOS STATE (1994) 7 NWLR (Pt. 355)235 at 248 per Akanbi J.C.A. (as he then was) stated as follows:"It is perhapsimportant to also emphasize that, Courts have always learned in favour ofpreservation of the Fundamental Right of the Citizen whether as regards lifeor property, and will not therefore lightly drive away from the judgment seat,any citizen with a complaint that, his right has been infringed, FAJINMI v. THESPEAKER, WESTERN HOUSE OF ASSEMBLY (1962) 1 S.C.N.L.R. 300 (1962) 1ALL N.L.R. (Pt. 1) 205."Again, this Court per Onalaja J.C.A. (as he then was) inBANK OF BARODA v. IYALABAMI LTD (1998) 2 NWLR (Pt. 539) 600 at 613stated as follows:"FALOBI v. FALOBI (1976) 1 B.M.L.R. 169 (1976) 9-10 S.C.;OJAH v. OGBONI (1996) 6 NWLR (Pt. 454) 272; MADESON IKENI & ANOR v.CHIEF WILLIAMS AKUMA EFOMO & 2 ORS (1997) 4 NWLR (Pt. 499) 318 allstated that, where a party approaches the Court by reference to citation of awrong law, the Court should do substantial justice by deciding the case onthe merit."Per BAGE, J.C.A. (Pp. 19-22, Paras. E-A) - read in context

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2 JUDGMENT AND ORDER - VARIATION OF JUDGMENT: Whether a Courtcan vary its order or judgment"The issue of whether, the trial Court can set aside or vary its own judgment,is a settled law. The law is that, the powers of the High Court or Federal HighCourt as in this case, to correct its own record are set out in the various rulesof Court applicable to that Court. What is of general application to all therules is that, clerical mistakes, in judgments or orders or errors arisingtherein from any accidental slip, or omission may at any time be correctedby the Court on motion or summons without an appeal. The rule envisagesthe correction or amendment of (a) clerical mistakes and (b) errors arisingfrom any accidental slip or omission. See the Supreme Court case of DANIELASIYANBI & ORS v. EMMANUEL AWE ADENIJI (1967) 1 ALL N.L.R. 82 at pages87 and 89. The Apex Court has further clarified this position in the morerecent decision of: AUTO SUPPLY CO LTD v. AKIBU (2006) 6 S.C. 1. Oncorrection of errors on matters of law in a judgment, as is with the presentapplication. The Supreme Court stated:"Where there had been an error oromissions by a Court on matters of law, the Court would not have jurisdictionto correct such errors or omissions even though apparent on the face of thejudgment or order. In other words, the extent and scope of the exercise ofpower of Court to correct clerical error, accidental slips or omissions shouldnot be used as an excuse to review, reverse or rehear the case a fresh."PerBAGE, J.C.A. (Pp. 24-25, Paras. B-D) - read in context

3 JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER: Guidingprinciple for setting aside judgment"The Supreme Court has set out a guiding principle for setting asidejudgment see WILLAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982)1-2 S.C. 145; (1982) 1-2 S.C. (Reprint) 70 as follows:1. The reason for thedefault in filing the defence.2. Whether there has been undue delay inmaking the application so as to prejudice the Respondent.3. Whether theRespondent would be prejudiced or embarrassed upon on an order forrehearing being made so as to render it unequitable to permit the case to bere-opened and4. Whether the Applicant's case is manifestly unsupportable.OGOLO v. OGOLO (2006) 2 S.C. (Pt. 1) 61."Per BAGE, J.C.A. (Pp. 25-26, Paras.F-C) - read in context

4 PRACTICE AND PROCEDURE - VOID ACT: What is the effect of void act"An act that is void is, always incurably bad, and that is when there will beno need for an order of the Court to set it aside. See: K. AKPENE v.BARCLAYS BANK OF NIGERIA LTD & ANOR (1977) 1 SC 47 at pages 58-59;ALHAJI LABARAN NAKYAUTA v. ALHAJI IBRAHIM MAIKIMA & ANOR (1977) 6 SC51 at 78."Per BAGE, J.C.A. (Pp. 26-27, Paras. E-A) - read in context

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SIDI DAUDA BAGE, J.C.A. (Delivering the LeadingJudgment): This is an appeal against the ruling of M. B.Idris J, of the Federal High Court, Lagos Divisioncontained in the ruling of the Court dated the 2nd day ofMarch, 2012 whereby the learned trial judge dismissedthe Appellant's motion on notice dated the 28th day ofJune, 2011 and refused to set aside his null judgmentgiven without jurisdiction on the 13th day of October,2010.The fact which led to this appeal are as follows:

The Appellant vide his motion ex parte dated the 11thday of May, 2009 and filed on 27th day of May, 2009applied for the leave of the trial Honourable Court toenforce his Fundamental Human Rights. The motion Ex-parte was brought pursuant to Order 1 Rule 2 (1) (2)(3) (4) 6, Order 4 Rules 1(2) (3) (4) and (6) of theFundamental Human Rights. (EnforcementProcedure) Rules 1979. His application for leave wasaccompanied with a statement stating the namesaddresses and description of the Applicants, the reliefssought, and the grounds upon which the reliefs arebeing sought. A verifying affidavit of seven (7)paragraphs and exhibits was also filed

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along with the motion ex-parte.

RELIEFS SOUGHT BY THE APPLICATION

I. A declaration that, the forceful, illegal, unlawful

and uncivilized arrest without warrant, detention,

humiliation and torture of the Applicant by the

officers and men under the command of the 1st, 2nd

and 3rd Respondents at the criminal and unwarranted

mastermind and fiendish instigation of the 5th

Respondent is a gross, violation uncivilized, brute,

flagrant and unmitigated violation of the Applicants

rights to dignity of human person, personal liberty,

fair hearing and freedom of movement guaranteed

and safeguarded under Sections 34, 35, 36 and 41 of

the Constitution of the Federal Republic of Nigeria,

1999 and under Articles 3, 4, 5, 6, 7 and 12 of the

African Charter on Human and Peoples' Rights

(Ratification and Enforcement) Act, Laws of the

Federation of Nigeria.

II. A declaration that, the forceful, illegal and

unwarranted arrest without warrant, torture and

unlawful detention of the Applicant on the 25th day of

July, 2008 and his subsequent detention to the 29th

day of July 2008 by the men and officers under the

command of the 1st and 2nd Respondents;

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and his arrest, detention and continued harassment

since the 7th day of March, 2008 by the men and

officers under the command of the 3rd Respondent at

the continued, selfish and unceasing instigation and

promptings of the 5th Respondent without any formal

charge against him amounts to a gross violent of the

Appellant's rights to fair hearing as guaranteed under

Section 36 of the 1999 Constitution of the Federal

Republic of Nigeria, and Articles 7 of the African

Charter on Human and Peoples' Rights (Ratification

and Enforcement) Act, Laws of the Federal Republic

of Nigeria.

III. A declaration that, the commando, Gestapo style,

forceful, illegal, unlawful and uncivilized arrest

without warrant detention, humiliation and torture of

the Applicant by the officers, operatives and men

under the command of the 4th Respondent and his

continued harassment and intimidation at the

barbaric and uncouth mastermind and corrosive

instigation of the 5th Respondent is a gross, violent,

flagrant and unmitigated violation of the Applicants'

rights to dignity of human person, personal liberty,

fair hearing and freedom of movement guaranteed

and safeguarded under Sections 34,

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35, 36 and 41 of the Constitution of the Federal

Republic of Nigeria 1999 and under Articles 3, 4, 5, 6,

7 and 12 of the African Charter on Human and

Peoples' Rights (Ratification and Enforcement) Act,

Laws of the Federal Republic of Nigeria 1999 and

under Articles 3, 4, 5, 6, 7 and 12 of the African

Charter on Human and Peoples' Rights (Ratification

and Enforcement) Act, Laws of the Federal Republic

of Nigeria.

IV. A declaration that, the forceful and unwarranted arrest

without warrant, torture, unlawful detention of the

Applicant from the 24th day of April to the 29th day of

April, 2009 and his continued and unabated harassment

and intimidation by the men, operatives and officers under

the 4th Respondent at the criminal masterminds and selfish

instigation and promptings of the 5th Respondent without

any formal charge against him amounts to a gross violation

of the Applicant's right to fair hearing and freedom of

movement as guaranteed under Section 36 and 41 of the

Constitution of the Federal Republic of Nigeria, 1999

and Articles 7 and 12 of the African Charter on Human

and Peoples' Rights (Ratification and Enforcement)

Act, Laws of the Federal

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Republic of Nigeria.V. A declaration that, the continued and unabatedharassment, intimidation and threat of furtherunlawful and illegal detention of the Applicant bythe men, operatives and officers of the 1st-4thRespondents, on an entirely commercialtransaction between him and a Corporate Entity(FIRS Equity Securities Limited) under which the5th Respondent is a Director, at the continuedinstigation of the 5th Respondent amounts to agross violation of the Applicant's right to personalliberty, fair hearing and freedom of movement asguaranteed under Section 34, 36 and 41 of theConstitution of the Federal Republic of Nigeria1999 and under Articles 3, 7 and 12 of the AfricanCharter on Human and Peoples' Right (Ratificationand Enforcement) Act, Laws of the FederalRepublic of Nigeria.VI. The sum of N50 million (Fifty Million NairaOnly) as general, exemplary, aggravated andpunitive damages jointly and severally against theRespondents, for unlawful, illegal, unjustifiedarrest without warrant of the Applicant, hiswrongful torture and detention by men and officersof the 1st-4th Respondents at the fiendish andunrepentant instigation and

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masterminds of the 5th Respondent, and the

unceasing and unlawful harassment and unabated

intimidation of the Applicant.

VII. An order of interim injunction restraining the

Respondents, their agents, privies, men, operative,

officers, assigns or anybody whosever and at

whatsoever capacity in their commands/commission,

and on their authority howsoever from harassing,

intimidating arresting, torturing, detaining, and or

continuing in their renewed harassment, intimidating

and or persecution of the Applicant pending the

hearing and final determination of the substantive

application.

VIII. An order that the granting of leave in this

application shall operate as a stay of all actions or

matters relating to or connected howsoever with the

Applicants' complaints against the Respondents

herein or their agents pending the hearing and final

determination of the substantive application/motion

on notice.

IX. An order of perpetual injunction restraining the

Respondents, their agents, privies, men, operatives

anybody acting for or however in their authority,

command or commission from further arresting,

harassing, intimidating or persecuting the Applicant

or

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continuing in the infringement of the guaranteedrights of the Applicant.

GROUNDS UPON WHICH THE RELIEFS AREBEING SOUGHT1. The Forceful, unwarranted, unlawful arrestwithout warrant, unabated, harassment, sustainedintimidation, detention, torture and unrestrainedinfringement of the Applicant's right variously both1st and 4th Respondents, with the sustained andwicked instigation without any formal chargeagainst him violates the Applicant's right to fairhearing, dignity to his human person, freedom ofmovement and a flagrant restrains on his liberty asa free citizen of Nigeria as guaranteed andprovided for in Sections 34, 35, 36 and 41 of the1999 Constitution of Nigeria and under Articles 3,4, 5, 6, 7 and 12 of the African Charter on HumanRights.2. The Applicant is a renowned businessman andseasoned stock broker, his continued harassmentand intimidation by the men, officers andoperatives of the 1st-4th Respondents at theinstigation of the 5th Respondent has frontallyfrustrated his business as well as economicendeavours, and has accordingly frustrated hisfatherly role to his family.3. The Applicant has been made to undergo

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pensive mental torture, economic deprivation andsocial dislocation as a result of his incessantincarceration torture and unwarranted harassmentand intimidation by the men, officers and oroperatives of the 1st-5th Respondents.

The learned trial Court Coram Tijjani Abubakar J. (nowJCA) on the 4th day of June, 2009 granted leave to theApplicant to enforce his Fundamental Rights. TheFundamental Human Right's application was re-assignedto Justice Idris, when Justice Tijjani Abubakar wastransferred to another division of the Federal HighCourt. Prior to the hearing of the Applicant's motion onnotice, to enforce his fundamental human rights, theFundamental Human Rights (Enforcement Procedure)Rules 1979 was repealed and a new set of rules enactedand it came into effect on the 1st day of December,2009. We refer to Order 11 Rules 2 and 3 of theFederal Republic of Nigeria (Enforcement Procedure)Rules 2009. On the 13th October, 2010, the learnedtrial judge without inviting the parties to address theCourt on the jurisdiction of the Court, and suo motu inits judgment struck out the application of the Applicanton the ground that, the present

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application is supported by an affidavit not a statement. It

was against this decision of the trial Court, that, the

Appellant brought an application to set aside the judgment

of that Court, on the ground that, the decision was reached

per incuriam and without jurisdiction. The application for

leave under the 1979 Fundamental Human Rights Rules

was accompanied by a statement. After leave was granted,

it was no longer necessary for the Appellant/Applicant to

file another statement, with his motion on notice upon the

coming into effect of the 2009 Fundamental Human Right

Rules. In his ruling dated the 2nd day of March, 2012, the

learned trial judge held refusing the Appellant's application

to set aside its judgment dated 13th October, 2010.

Dissatisfied with the decision of the trial Court contained in

the judgment dated 2nd March, 2012, the Appellant

promptly appealed against the decision refusing to set

aside the default judgment of the trial Court, vide his notice

of appeal dated and filed on the 16th day of March, 2012.

From the said notice, the Appellant formulated the

following two (2) issues for determination viz:

1. Whether the learned trial judge

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Coram M. B. Idris J, was right when he held that the

judgment of the Court dated, the 13th day of October,

2010 was a final judgment which can only be set aside

on appeal. (Ground 2 of the Grounds of appeal.)

2. Whether the learned trial judge Coram M. B. Idris

J, was right when he refused to set aside its null

judgment dated 13th day of October, 2010, given

without jurisdiction thereby infringing on the right of

the Appellant to fair hearing (Grounds 1 and 3 of the

Grounds of appeal).

The learned counsel to the 4th Respondent also formulated

the following two (2) issues for determination viz:

a) Whether the judgment of the Court below delivered

on 13th October, 2010, which the learned trial judge

declined to set aside, in the circumstance of this case,

was a final judgment which can only be set aside by

way of an appeal as held by the Court below?

b) Whether the striking out of the Appellant's suit

and refusal to set aside the judgment of 13th October,

2010 infringed the Appellant's right to fair hearing?

Having examined the two set of issues, that of the

Appellant, and those of the 4th Respondent, they are

similar, but differently

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worded, in that respect therefore, the Court shall be guided

by the two (2) issues proposed by the learned counsel for

the Appellant in the determination of this appeal.

ISSUE ONE (1)

Whether the learned trial judge Coram M. B. Idris J, was

right when he held that the judgment of the Court dated

the 13th day of October, 2010 was a final judgment which

can only be set aside on appeal (Ground 2 of the grounds of

appeal).

Learned counsel to the Appellant contended that, the

refusal of the learned trial judge to set aside his ruling of

the 2nd March, 2012 was wrong. The said ruling is sequel

to the learned trial judge judgment dated 13th October,

2010, which was not a final judgment, and such capable of

being set aside by the learned trial judge upon the

application of the Appellant. Our contention here is that,

the judgment of the learned trial judge dated 13th October,

2010 did not resolve any of the issues presented for his

consideration, and as contained in the Appellant's motion

notice, to enforce his fundamental human right dated the

10th day of June, 2010. The judgment was at best, a default

judgment, inchoate inconclusive and undeterminable

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of the rights of the parties before the lower Court. There

was no consideration of the competing interest, obligation,

objections and evidence of the parties. The decision did not

determine the Appellant's case on the merit as the case was

erroneously struck out without jurisdiction. Judgment

cannot be final, once it does not affect the status of the

parties for whichever side the decision may be given. See

USUNG v. NYONG (2010) 2 NWLR (Pt. 1177) 83 at

114-115, paras. H-B; OGBORU v. IBORI (2005) 13

NWLR (Pt. 942) 319; U.T.C. (NIG) LTD v. J.P.

PAMOTEI (2002) FWLR (Pt. 129) 1557 at 1623 paras.

B-D pp. 1623-1624 paras. G-A; OGUNYADE v.

OSHUNKEYE (2007) ALL FWLR (Pt. 389) 1179 at

1189 paras. B-C IP. 1190 paras. B-C; ATTORNEY-

GENERAL OF FEDERATION v. ABUBAKAR (2007) ALL

FWLR (Pt. 375) 405 at 457-458 paras F-D.

Learned counsel further submitted that, the learned trial

judge in his judgment struck out the Appellant's application

to enforce his Fundamental Human Rights without

jurisdiction when he predicated his judgment on the fact

that, "the present application is supported by an affidavit,

but not by a statement". This was contrary to the express

provision of

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Order XV (2) (3) of the Fundamental Right Rule2009. In paragraphs 3 (E-J) of his affidavit in support ofhis motion on notice to set aside the judgment of thelearned trial judge dated 13th day of October, 2010, itwas thereat deposed to and in favour of the Appellant,the various reasons why the null judgment of theIearned trial judge should, and ought to be set aside.(See pages 185-186 of the records). The aboveaverments were never denied by the Respondents, nordid the learned trial judge, in his ruling appealed againstdisputed the fact that, leave was obtained by theAppellant to enforce his Fundamental Human Rights onthe 4th day of June, 2009. Leave was granted byHonourable Justice Tijjani Abubakar to enforce hisFundamental Rights. See the case of VULCAN CASESLTD v. G.F.I.G. (2001) FWLR (Pt. 53) at 31 paras.D-F; DINGYADI v. INEC (No. 1) (2010) 18 NWLR(Pt. 1224) 1 at 91 paras. B-D, ADEMILUYI v.AFRICAN CONTINENTAL BANK LTD (1965) NMLR24; OBIMONURE v. ERINOSHO (1966) 1 ALL NLR2 5 0 ; W E S T A F R I C A N A U T O M O B I L E &ENGINEERING CO. LTD v. AJANAKU (1972) UILR335; SKEN CONSULT (NIG) LTD v. UKEY (1981) 1.SC; ADEGOKE MOTORS LTD v. ADESANYA (1989)3

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NWLR (Pt. 109) 250; OKAFOR v. ATTORNEY

GENERAL OF ANAMBRA STATE (1991) 6 NWLR (Pt.

200) 659.

Learned counsel further submitted that, it is obvious from

the decision of the learned trial judge dated the 13th day of

October, 2010 that, the judgment was a default judgment

and not on the merit. Therefore, the learned trial judge was

wrong when he refused to set aside its default judgment.

This is because, the law is clear that, a decision reached by

a Court which is a default judgment, can be set aside by the

same Court that reached that decision. See FIRST BANK

OF NIG PLC v. T.S.A. INDUSTRIES LTD (2010) 15

NWLR (Pt. 1216) 247 at 305-306, paras. H-B; WITT &

BUSCH LTD v. DALE POWER SYSTEMS PLC (2007) 17

NWLR (Pt. 1062) 1; FAJINMI v. SPEAKER WESTERN

REGION HOUSE OF ASSEMBLY (1962) 1 SCNLR 300;

OKE v. AIYEDUN (1986) 2 NWLR (Pt. 23) 548. The

Court becomes functus officio when it has given a judgment

or made an order on the merit. See ENE v. ASIKPO

(2010) 10 NWLR (Pt. 1203) 477 at 513 paras C-D, 516

paras H. In the instant case, the learned trial judge never

decided the case of the abridgment/infringement of the

fundamental human rights of the appellate in his

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default judgment dated 13th October, 2010. We urge this

Court to set aside the said default judgment.

In his reply to the submission above, the learned counsel

for the 4th Respondent contended that, the Appellant's

application for the enforcement of his fundamental rights

has been argued by counsel to both parties. However, the

learned trial judge considered the issue of whether the

appellate had properly invoked the jurisdiction of the Court

by compliance with Order 11 Rule 3 of the Fundamental

Rights Enforcement Procedure Rules 2009 which is the

extant applicable rules of Court. The learned trial judge

upon being satisfied that Appellant had not complied with

this mandatory rule of Court struck out the Appellant's

application. On the test to be applied whether the judgment

or order of a first instant Court are final or interlocutory.

See AKINSANYA v. U.B.A. LTD (1986) 4 NWLR (Pt. 35)

273; BOZSON v. ALTRINCHAM (1903) 1 Q.B. S73. The

trial Court having heard the application which was argued

by counsel to parties before arriving at the decision that,

Appellant did not properly invoke the jurisdiction of the

Court for non compliance with the Order 11 Rules

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3 Fundamental Rights Enforcement Procedure Rules

2009 struck out the application is final judgment as there

was nothing more to be done as regards the right of the

parties, the application can no longer be heard the second

time as sought by the Appellant. The Court had terminated

the suit and there is no longer any issue between the

parties to be considered by the Court. The judgment of

13th October, 2010 was a final judgment that can only be

set aside on appeal. See also ALOR v. NGENE (2007) 2

S.C. 1; AKINSANYA v. U.B.A. (supra) on factors to be

considered before a Court can set aside its judgment, see

TOMTEC NIG LTD v . FEDERAL HOUSING

AUTHORITY (2009) 12 S.C. (Pt. 162; TOM v. AMEH

(L992) 1 NWLR (Pt. 217) 306. The learned trial judge

was right to have dismissed the Appellant's motion dated

28th February, 2011 in the ruling of 2nd March, 2012. We

urge the Court to resolve this issue against the Appellant.

On the part of this Court, the submissions above are

carefully examined. The main contention of the Appellant in

this appeal is that, the Appellant then the Applicant at the

Court of trial, was granted leave to enforce his

Fundamental Human Right vide an

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ex-parte application on the 4th June, 2009. There was later

a change in the Constitution of the Court, prior to the

hearing of the same application, but on notice. Secondly,

the law under which the first ex-parte application, the

Fundamental Human Rights (Enforcement Procedure)

Rules 1979 was repealed and a new set of rules enacted

and it came into effect on 1st day of December, 2009, while

the motion on notice was still pending. The learned trial

judge on the 13th October, 2010 without inviting the

parties to address the Court on the jurisdiction of the

Court, considered the current position in the new law, and

suo motu in his judgment, struck out the application of the

Applicant on the ground that, the present application is

supported by an affidavit, not a statement. The Appellant

applied to the trial Court to set aside this ruling. The Court

of trial refused the application to set aside in a ruling dated

2nd March, 2012. Dissatisfied with the refusal to set the

ruling earlier, the Appellant entered this appeal. The

Appellant had argued that, the ruling of the 2nd March,

2012 did not resolve any of the issues presented for

consideration, and at best only

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constituted a default judgment. The 4th Respondent on the

contrary maintained that, the judgment of the learned trial

judge delivered on 13th October, 2010 which is at pages

171-180 of the records. It is clear that, the Appellant's

application for the enforcement of his Fundamental Rights

has been argued by counsel to both parties. The learned

trial judge considered the issue of whether the Appellant

had properly invoked the jurisdiction of the Court by

compliance with Order 11 Rule 3 Fundamental Human

Right Enforcement Procedure Rules 2009, which is the

extant applicable Rules of Court. The learned trial judge

upon being satisfied that, Appellant had not complied with

this mandatory rule of Court struck out the Appellant's

application.

The main issue here is that, the Appellant's motion on

notice, which was pending before the Court, to be

determined, and brought under the provisions of the old

law, is it caught up by the provisions of the new law? The

bane of the decision of the Court of trial is that, since the

application of the Appellant then before it was not heard

and determined before the enactment of the new law, that

application can only succeed

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if, and only, when it complies with the requirement of the

extant law in question. The Appellant had predicated his

motion on notice based on the provisions of the

Fundamental Rights (Enforcement Procedure) Rules 1979,

which requires such an application be supported by an

affidavit. The new enactment, the Fundamental Rights

(Enforcement Procedure) Rules 2009 now requires such an

application on notice to be supported by a statement, since

the application to be determined in the year 2010 was

supported with an "affidavit" as against a "statement" as

required by the enactment, which came in, in 2009, the

learned trial Court treated that application as irregular and

struck it out.

Firstly, let me mention here and now that, the Fundamental

Rights (Enforcement Procedure) Rules is law and not

simply a Rules of Court procedure. The law is settled on the

issue of commencement of action at the time it was filed,

the law that governs such an action is the law at the time of

filing such an action and not the extant law prevailing after

the commencement of such an action. This position had,

since been settled by the old Supreme Court. See

MUFUTAU ALAWODE

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& ORS v. M. A. SEMOH (1959) 4 FSC 27 at pages

29-30. The then F.S.C. stated as follows:

"The test for the commencement of an action both

according to English rules and the local rules of

Court appears to me to be this: has the Plaintiff done

all that is required of him by law to commence this

action? In England, all he has to do is to buy the writ

and endorse it. In Nigeria, he has to make an

application to the registrar and pay the necessary

fees. From then on, his responsibility ceases and what

is left to be done is, a domestic affair of the Court and

its staff. From the time the Plaintiff in Nigeria

delivers his application to the Registrar (provided it is

not an action in which, the consent of the Court is

necessary before the writ is issued) and he pays the

necessary fees it will, in my view, be correct to say

that an action or suit has been commenced.

This case involved a claim under the Fatal Accidents

Act 1846 which requires that, action must be

commenced within twelve calendar months after the

death of the victim. The accident in this particular

case occurred on August 2, 1956. The writ of

summons was filed on August 2, 1957. It was

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signed by on August 8, 1957. The defence submitted

that, the action was statute-barred. The objection was

over ruled on appeal to the Supreme Court."

This Court, the Court of Appeal followed this decision of the

Supreme Court in SADIKU v. ATTORNEY GENERAL OF

LAGOS STATE (1994) 7 NWLR (Pt. 355) 235 at 248

per Akanbi J.C.A. (as he then was) stated as follows:

"It is perhaps important to also emphasize that,

Courts have always learned in favour of preservation

of the Fundamental Right of the Citizen whether as

regards life or property, and will not therefore lightly

drive away from the judgment seat, any citizen with a

complaint that, his right has been infringed, FAJINMI

v. THE SPEAKER, WESTERN HOUSE OF ASSEMBLY

(1962) 1 S.C.N.L.R. 300 (1962) 1 ALL N.L.R. (Pt. 1)

205."

Again, this Court per Onalaja J.C.A. (as he then was) in

BANK OF BARODA v. IYALABAMI LTD (1998) 2

NWLR (Pt. 539) 600 at 613 stated as follows:

"FALOBI v. FALOBI (1976) 1 B.M.L.R. 169 (1976)

9-10 S.C.; OJAH v. OGBONI (1996) 6 NWLR (Pt. 454)

272; MADESON IKENI & ANOR v. CHIEF WILLIAMS

AKUMA EFOMO & 2 ORS (1997) 4 NWLR (Pt. 499)

318 all stated that, where a party approaches

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the Court by reference to citation of a wrong law, the

Court should do substantial justice by deciding the

case on the merit."

The case of the present Appellant is more worrisome as he

had approached the Court, seeking for the enforcement of

his Fundamental Human Right. It was wrong on the part of

the trial Court, to strike out his application on a flimsy

excuse, which was not even the law, when he filed his

application, that, a statement is required and not an

affidavit, which was the law at the time of his application.

The Appellant, no doubt has suffered a denial of justice by

the trial Court, having done all that is required of him to do

under the law at the time of his commencement of his case.

The new enactment relied upon by Court notwithstanding.

The judgment of the learned trial judge dated the 13th of

October, 2010 was arrived at in error, and this Court

cannot therefore allow it to stand.

The next leg of this issue is, whether the same Court, which

gave the judgment on the 13th October, 2010, can by itself

set it aside based on the application of the Appellant to do

so. The learned trial Court on the 2nd March, 2012 ruled

and refused the

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application to set aside its judgment of 13th October, 2010,

on the premise that, it had become functus officio. The

question here is that, can the trial Court set aside or vary

this judgment? This Court has examined the judgment of

the trial Court of the 13th October, 2010 on page 177 of

record, after setting out the Applicant's application

(Plaintiff) now Appellant, the record bears that, "the

application of the Applicant was supported by an affidavit

deposed to by Victor Anozie, the Applicant. A written

address was attached to the affidavit. The 5th Defendant

filed a counter affidavit and a written address on the 6th of

December, 2009. The Applicant filed a reply to the 5th

Defendant's counter affidavit on 19th February, 2010. On

22nd February, 2010, the Applicant's counsel filed a further

written address. On the 17th of May, 2010, the 5th

Respondent filed a further counter affidavit and a further

written address in opposition. When the matter came up for

hearing on the 12th day of October, 2010, counsel adopted

their respective written addresses as their argument in

respect of this application for the enforcement of

Fundamental Rights. From the above

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portion of the judgment quoted, it is incorrect, as the

learned counsel to the Appellant is presented it that, the

learned trial Court delivered a default judgment, without

hearing the parties, and suo motu struck out the

Appellant's application. The parties were duly heard before

arriving at the decision she did by the trial Court. Having

settled this point, can the trial Court set aside this

judgment, whether the decision was rightly or wrongly

arrived at. The issue of whether, the trial Court can set

aside or vary its own judgment, is a settled law. The law is

that, the powers of the High Court or Federal High Court

as in this case, to correct its own record are set out in the

various rules of Court applicable to that Court. What is of

general application to all the rules is that, clerical mistakes,

in judgments or orders or errors arising therein from any

accidental slip, or omission may at any time be corrected by

the Court on motion or summons without an appeal. The

rule envisages the correction or amendment of (a) clerical

mistakes and (b) errors arising from any accidental slip or

omission. See the Supreme Court case of DANIEL

ASIYANBI & ORS v.

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EMMANUEL AWE ADENIJI (1967) 1 ALL N.L.R. 82 at

pages 87 and 89. The Apex Court has further clarified this

position in the more recent decision of: AUTO SUPPLY CO

LTD v. AKIBU (2006) 6 S.C. 1. On correction of errors on

matters of law in a judgment, as is with the present

application. The Supreme Court stated:

"Where there had been an error or omissions by a

Court on matters of law, the Court would not have

jurisdiction to correct such errors or omissions even

though apparent on the face of the judgment or

order. In other words, the extent and scope of the

exercise of power of Court to correct clerical error,

accidental slips or omissions should not be used as an

excuse to review, reverse or rehear the case a fresh."

No doubt that, decision of the trial Court on the Appellant

was on a matter of law, the trial Court was therefore in no

position to set it aside, having become functus officio to do

so. It is also wrong to suggest as the Appellant did in their

argument that, the judgment of the trial Court of the 13th

October, 2010 was a nullity. The Appellant had urged this

Court to set it aside. The Supreme Court has set out a

guiding principle for

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setting aside judgment see WILLAMS v. HOPE RISING

VOLUNTARY FUNDS SOCIETY (1982) 1-2 S.C. 145;

(1982) 1-2 S.C. (Reprint) 70 as follows:

1. The reason for the default in filing the defence.

2. Whether there has been undue delay in making the

application so as to prejudice the Respondent.

3. Whether the Respondent would be prejudiced or

embarrassed upon on an order for rehearing being

made so as to render it unequitable to permit the case

to be re-opened and

4. Whether the Applicant's case is manifestly

unsupportable. OGOLO v. OGOLO (2006) 2 S.C. (Pt. 1)

61.

Also, let me add that, the Appellant has not shown that, the

judgment reached by the trial Court was a nullity. There

was no doubt an error, but the trial Court mistakenly

thought the law to be applied was the extant law and not

the earlier law which the Appellant's application was

predicated upon. An act that is void is, always incurably

bad, and that is when there will be no need for an order of

the Court to set it aside. See: K. AKPENE v. BARCLAYS

BANK OF NIGERIA LTD & ANOR (1977) 1 SC 47 at

pages 58-59; ALHAJI LABARAN NAKYAUTA v. ALHAJI

IBRAHIM MAIKIMA & ANOR (1977) 6 SC

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51 at 78. On a final note, this issue succeeds partially.

On the issue two (2), whether the trial judge Coram M. B.

Idris J, was right when he refused to set aside its null

judgment dated the 13th day of October, 2010, given

without jurisdiction thereby infringing on the right of the

Appellant to fair hearing, has become an academic question

in view of the resolution by this Court to issue No. 1. This

Court had resolved that the trial Court cannot set aside the

said judgment, but this Court can do that on appeal such as

this. This Court had adjudged in issue No. 1 that, the

judgment of the trial Court of the 13th October, 2010 was

arrived at in error and that, this Court cannot allow it to

stand and it is hereby set aside. However, as applied by the

Appellant, that Court cannot set aside that judgment as it

had become functus officio, the setting aside can only be

done by this Court, which it has just exercised. Also this

Court did not find the judgment to constitute a nullity.

On the whole therefore, this appeal succeeds in part, and

this Court makes the following orders:

1. The judgment of the trial Court delivered on the 13th

October, 2010 is

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hereby set aside by this Court.

2. The motion on notice of the Appellant to enforce his

Fundamental Human Rights dated 10th June, 2009 and

filed on 12th June, 2009 remains valid.

3. The said motion on notice is to be heard and determined

by another judge of the Federal High Court, other than

Honourable Justice M. B. Idris.

4. The case file is to be remitted back to the Honourable

Chief judge of the Federal High Court for an immediate

action.

5. I make no order as to costs.

CHINWE EUGENIA IYIZOBA, J.C.A.:I read before now

the judgment just delivered by my learned brother, SIDI

DAUDA BAGE JCA. I am in full agreement with the reasons

given and the conclusions reached therein. I abide by the

consequential orders in the judgment.

JAMILU YAMMAMA TUKUR, J.C.A.:

I had the privilege of reading in draft the lead judgment

written and delivered by my learned brother SIDI DAUDA

BAGE, JCA, with which I concur with nothing to add.

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