IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD

 

DATE: 16 October 2024                                              SUIT NO: NICN/AWK/32/2023

 

BETWEEN

Dr. Peter Ngoesina Ekemezie                               -             Applicant/Claimant

 

AND

1.     Nnamdi Azikiwe University                                   

2.     Council, Nnamdi Azikiwe University

3.     Pro-Chancellor, Nnamdi Azikiwe University                  

4.     Vice Chancellor

5.     Prof. Charles Okechukwu Ezimone

6.     Registrar, Nnamdi Azikiwe University       

7.     Pro. John K. Nduka

8.     Dr. Chigozie J.O. Anarado                               -              Respondents/Defendants

 

REPRESENTATION

Dr. Peter Ngoesina Ekemezie represents himself.

Reginald Uzoechi for the 1^st- 6^th Respondents/Defendants.

K.N. Ogba for the 7^th and 8^th Respondents/Defendants.

 

RULING

INTRODUCTION

1.     The Claimant’s Motion on Notice brought pursuant to Order 47 Rule 22 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 (NICN Rules 2017) and under the inherent jurisdiction of this Court prayed the Court for the following:

1)   An order to rescind the judgment delivered on Thursday, 19^th October 2023 by Hon. Justice John I. Targema, PhD dismissing the claimant’s referenced suit for been made in error.

2)   An order to grant all the reliefs sought by the claimant in the referenced suit on merits.

3)   And for such further order(s) the Court may deem fit to make in this circumstances.

 

2.     In the affidavit in support of Motion on Notice re: Suit No. NICN/AWK/47/2019 the claimant stated that he is the claimant in the referenced suit for which the judgment is being sought for a rescind; that 1^st defendant did not follow due process in his dismissal; that the Joint Council/Senate Disciplinary Committee (JC/SDC) was unilaterally constituted by the 4^th defendant which is ultra vires his powers; that it is the Senior Staff Disciplinary Committee (SSDC) that ought to investigate the claimant as was the case in the 29 January 2015 Report of 1^st defendant’s Senior Staff Disciplinary Committee that absolved the claimant of any misconduct (see Exhibit “A”). That as a matter of fact the irregular JC/SDC violated the gamut of section 13 (1) (7) (vii) & (viii) of the 1^st defendant’s Senior Staff Conditions of Service which 1^st defendant did not deny or contradict in its evidence.

 

3.     The claimant went on that he was, above all, denied the constitutionally guaranteed right to fair ing (sic) being investigated by an irregular JC/SDC unilaterally constituted by the Vice Chancellor for which claimant has been charged for abuse of office in Charge No. FHC/AWK/410/2023 at the Federal High Court, Awka. See Exhibit “B”.

 

4.     On whether or not the 1^st defendant followed the due process stipulated under section 13 (1) (7) (vii) & (viii) of its Senior Staff Conditions of service before the purported dismissal of the claimant, it is submitted by the claimant that the 1^st defendant did not tender any evidence to contradict or discredit the impeccable evidence of the claimant that 1^st defendant violated the gamut of section 13 (i)  (7) (vii) and (viii) of its Senior Staff Condition of Service in the dismissal of the claimant whereas the law is that a trial Court has little or no choice but to accept the unchallenged and uncontroverted evident (sic) placed before it by the claimant it is not discredited by the defendants during cross examination. See Monkom v. Odili (2010) 2 NWLR (Pt. 1179) 419 SC.

 

5.     In conclusion, the claimant urged the Court to grant the reliefs sought in this present suit.

 

THE CASE OF THE 1^{ST -}  6^TH DEFENDANTS

6.     It is the case of the 1^st-6^th defendants that judgment in Suit No. NICN/AWK/47/2019 between the claimant and the defendants was delivered on 19 October, 2023; that by the judgment order, the Court dismissed the claimant’s claims; that the said judgment determined with finality the claimant’s cause of action relating to his dismissal from the 1^st defendant. That the deposition of the claimant in paragraph 2, 3 and 4 of the affidavit in support of Application has been resolved and determined by the Court contrary to the false position alleged by the claimant; that the 4^th defendant who hold (sic) the position of the 5^th defendant has not been charged for any abuse of office as falsely alleged by the claimant; that this Court lacks the jurisdiction to rescind its decision; that this Court lacks the jurisdiction to sit on appeal against its own decision.

 

THE SUBMISSIONS OF THE 1^ST TO 6^TH DEFENDANTS

7.     The 1^st-6^th defendants submitted a sole issue for determination i.e. whether this Court has jurisdiction to rescind its judgment in the circumstances of this Application. To the 1^st-6^th defendants, the claimant sued the defendants in Suit No NICN/AWK/47/20219 challenging his dismissal from the 1^st defendant; that on the 19^th day of October, 2023, this Court in a well considered judgment dismissed the claims of the claimant and thereby became functus officio as far as the Suit No. NICN/AWK/47/2019 is concerned. That in a rather ridiculous move to get the Court to sit on appeal against its own decision, the claimant brought the present Application urging the Court to rescind its decision, for according to the claimant, the judgment was ”made in error.” It is the contention of the 1^st-6^th defendants that even though the Rules of this Court permits the Court to set aside a default judgment or to rescind its well considered decision in a contested case as in the instant case ; the law however, abhors the Court from sitting on Appeal against its own decision. That as it relates to the powers of the Court to set aside its own decision, in the celebrated case of Mark v. Eke (2004) LPELR-1841 (SC), the Supreme Court dispassionately appraised the conditions when a Court would set aside its own judgment and held as follows per Musdapher, JSC at page 24, para D-F;

“The law is settled that any Court of record including the Supreme Court, see Olabanji v. Odofin (1996) 2 SCNJ 242 at 247; (1996) 3 NWLR (Pt. 435) 126, has this inherent jurisdiction to set aside its own judgment given in any proceeding in which there must have been a fundamental defect such as one which goes to the issue of jurisdiction and competence of the Court. See Scenconsult ACS Pic. V. Losada (Nig) Ltd (1995) 7 NWLR (Pt. 405) 206; (1995) 7 SCNJ 158 at 168. Such a judgment is a nullity. A person affected by it is therefore entitled or debito justitiae to have it set aside. The Court can set aside suo motu and the person affected may apply by motion and not necessarily by way of appeal. See Adeigbe v. Kusimo (1965) NWLR 284; Ezeokafor v. Ezeko (1999) 6 SCNJ 209 at 225; (1999) 9 NWLR (Pt. 619) 513. This is common sense that if a Court makes an order which it has no jurisdiction or competence to make, it has the jurisdiction to rescind the order so as to restore the status quo. See Akinbobola v. Plisson Fisko (Nig) Ltd (1999) 1 NWLR (Pt. 167) 270. A judgment or order which is a nullity owing to failure to comply with an essential provision such as service of process can be set aside by the Court which gave it or made the order…”

 

8.     That in Barrister Oriker Jev & ors v. Iyortom & ors (2015) NWLR (Pt. 1483) 484, the Supreme Court held as follows:

“The Supreme Court possesses inherent power to set aside its judgment in appropriate or deserving cases such cases are as follows:

a)    When the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties such a judgment can be impeached or set aside by means of an action which may be brought without leave;

b)    When the judgment is a nullity such as when the Court itself was not competent and a person affected by an order of Court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside.

c)     When it is obvious that the Court was misled into giving a judgment under a mistaken belief that the parties consented to it.

d)   Where the judgment was given without jurisdiction; and

e)    Where the procedure adopted is such as to deprive the decision or judgment of the character of legitimate adjudication.”

 

9.     That Order 47 Rule 22 (1) and (2) of the NICN Rules 2017 allows the Court to vary or rescind its order or ruling:

a)    Where the order was erroneously sought or granted in the absence of any party affected by it.

b)    In which there is an ambiguity or patent error or omission but only to the extent of that ambiguity or patent error or omission.

c)     Granted as result of mistake common to the parties.

2.     The Court may also rescind an order made in the absence of any party who the order may be affected or made in error.

 

10.                       The 1^st-6^th defendants’ went on that even though the claimant purported to have brought this Application under Order 47 Rule 22 (1) and (2) of NICN Rules 2017, a thorough perusal of the Application makes it glaring that facts and circumstance of the claimant’s Application do not come under any conditions listed under Order 47 Rule 22 (1) and (2) of NICN Rules 2017. That in effect, the claimant is unwholesomely urging the Court to rewrite its judgment and reverse itself; that this explains why the claimant’s relief (2) is for “An order to grant all the reliefs sought by the claimant in the referenced suit on merit”; and the facts in support of the Application, as seen in the Affidavit in support of the Application, relates to facts and issues upon which the Court has already considered, resolved and made final determination on.

 

11.                       That the principle of law is clear, as held in the case of Kolo v. NPF & ors (2018) LPELR-43635 (CA) that, a Court cannot sit on appeal over its own decision as to overrule its ealier decision; that in Fawase v. Adekanbi & ors (2013) LPELR-21954 (CA), the Court of Appeal reiterated that Courts lack the requisite jurisdiction to revisit their ealier order under any other imaginable circumstances except where the decision is shown to be a nullity or to have been obtained by fraud. That this elementary principle of law is predicated on the doctrine of functus officio, which numerous judicial authorities confirm to the effect that once a Court has delivered its ruling on a matter, it cannot re-open it for the purpose of overruling itself. See Mohammed v. APC & ors (2019) LPLER-48061 (CA) (pp 26-27, paras B-D); Mohammed v. Husseni & ors (1998) LPELR-1896 (SC) (pp 42-43, paras E-A); Edo-Osagie & ors v. Commissioner for Lands, Mid-Western State of Nigeria (1973) LPELR-24937 (SC) and Nigeria Army v. Iyela (2008) LPELR-2014 (SC) (pp. 28-29, paras E-D).

 

12.                       In conclusion, learned senior counsel to 1^st- 6^th defendants prayed the Court to dismiss this claimant’s Application for lacking in merit and for want of jurisdiction.

 

COURT’S DECISION

13.                       I have carefully considered the processes filed by the Claimant/Applicant and the 1^st-6^th Defendants/Respondents. The motion on notice filed by the claimant prays for an order of Court to rescinding the judgment of this Court delivered on 19^th October 2023 dismissing the claimant’s case for being made in error; and for an order of Court granting all the reliefs sought by the claimant in Suit No. NICN/AWK/47/2019 and for such further order(s) the Court may deem fit to make in the circumstances of the suit. The Claimant/Applicant’s affidavit in support of his application rather dwelt on the 1^st defendant not following due process in his dismissal; that the Senior Staff Disciplinary Committee is the body that ought to have investigated claimant as was the case in 29 January 2015 Report of the 1^st defendant’s Senior Staff Disciplinary Committee that absolved him of any misconduct; that he was denied the constitutionally guaranteed right of fair hearing being investigated by an irregular JC/SDC unilaterally constituted by the Vice Chancellor. In none of these did the claimant cite the errors or slips contained in the judgment of this Court in Suit No. NICN/AWK/47/2019; worse still is claimant’s omission, neglect or refusal to attach/annex the said judgment in question/issue.

 

14.                        In response Learned Senior Counsel to 1^st-6^th defendants/respondents succinctly submitted especially in paragraph 3.8 and 3.9 of their written address that even though the claimant purported to have brought this Application under Order 47 Rule 22 (1) and (2) of NICN Rules 2017, a thorough perusal of the Application makes it glaring that, facts and circumstance of the claimant’s Application do not come under any conditions listed under Order 47 Rule 22 (1) and (2) of the NICN Rules 2017; that, in effect the claimant is unwholesomely urging the Court to rewrite its judgment and revert itself, that this explains why the claimant’s relief No. 2 is for “An order to grant all the reliefs sought by the claimant in the referenced suit on merits.” Learned senior counsel went on that in the case of Nigerian Army v. Iyela (2008) LPELR-2014 (SC), Akintan, JSC held clearly that: “The position of the law is that once a Court or Tribunal delivered its final judgment in a case before it, it became functus officio with respect to that case… what can be altered under the slip rule not as to the substance of the judgment ealier delivered but limited to minor errors, such as spelling errors, typographical or mathematical errors wherein correct figures can be entered…”

 

15.                       The Court has power to correct errors or slips contained in the judgment in order to give the judgment judicial efficacy. This is called the “slip rule.” Denton-West, JCA reiterated this well-settled rule of law in FRCN v. Iwuoha (2013) 1 NWLR (Pt. 1335) 207 CA. According to the Learned Justice of the Court of Appeal:

“It is not trite that, after delivering judgment/ruling in a matter, the Court becomes functus officio. It cannot revisit the judgment by giving a second judgment. The only remedy available to an aggrieved party is to appeal. See Onwuchekwa v. Co-operative & Commerce Bank Plc (1999) 5 NWLR (Pt. 603) 409; Peter Chieshe & anor v. NICON Hotels Ltd & anor (2007) All FWLR (Pt. 388) 1152 @ 163 Paras G-H

 

Therefore, once the intention of the Court is clear, there would be nothing to correct in the ruling, as the only corrections allowed are clerical mistakes in judgment or orders, or errors arising therein from any accidental slip or omission…”

 

16.                       Having considered the submissions of the claimant and the defendants, the authorities and law as stated, I have come to the conclusion that the entirety of the claimant’s Application is totally misconceived. It does not serve any purpose whatsoever. I so hold. In effect, it tantamounts to abuse of the Court process. The claimant’s Motion on Notice seeking three reliefs being entirely frivolous and bereft of any modicum of value. I so hold. Same is accordingly dismissed.

 

17.                       The claimant shall pay to the defendants the sum of ?50,000 (Fifty Thousand Naira) as general damages within 30 days of this judgment failing which it shall attract 10% simple interest per annum until fully liquidated.

 

18.                       Ruling is entered accordingly.

 

 

Hon. Justice J.I. Targema, PhD