Is Inherent Jurisdiction of a Court a Loose Canon? 

Introduction 

Every Lawyer freely bandies inherent jurisdiction of court, in their briefs and arguments. They wave it like a talismanic wand capable of conferring jurisdiction, even when none has been donated. There are many questions begging for answers to enable us understand this multi-layer topic. 

The Many Questions

Is inherent jurisdiction of court, bottomless? Is it shapeless like amoeba, or tentacled like an octopus? Is it an open cheque, available to a court or litigant to invoke at will? What is the scope of the inherent jurisdiction and power of superior courts, in Nigeria? Are they co-extensive with the powers of those courts, as donated to them by statute? Are those powers synonymous with the jurisdiction of such courts? Can such powers stand in the face of express statutory or constitutional provisions to the contrary? What is the exact intention, behind the provisions of Section 6(6)(a) of the 1999 Constitution which states that “The judicial powers vested (on superior courts of record) in accordance with the provisions of (the) section shall extend, notwithstanding anything to the contrary in this Constitution, to all powers and sanctions of a court of law”? 

To the extent that such inherent powers admittedly include the power to set aside court judgements in certain circumstances (fraud, concealment/non-disclosure of material facts, lack of jurisdiction, etc), are they coterminous with the statutory (and even constitutional) provisions for the right to appeal against a court’s decision? Is the right to apply to set aside a court’s judgement, a legitimate option (along with the right to appeal) to be exercised at the sole discretion of a party? Is the exercise of that right dependent on any collateral factors such as, for instance, that the Applicant or Appellant was or was not a party to the proceedings which he seeks to vacate? 

Does the fact that such a supposedly aggrieved person was not a party to the proceedings, make any difference? Can an interested non-party to any proceedings apply to set it aside, in the same way as he can appeal against the same (albeit with leave)? Is the exercise of such a right in the former case (i.e. to set the judgement aside?) not available exclusively to a party in the proceedings, whilst that in the latter case (i.e. of appeal) is open to all parties and non-parties alike? We shall presently examine these vexed questions, but first some preliminaries. 

Meaning of ‘Power’ in the Context of Adjudication

Power in the context of court adjudication, simply means the competence or capacity to decide cases brought before it for adjudication. In NABARUMA v OFFODILE (2006) All FWLR Pt. 294 Pg. 505 at 527, the Court of Appeal, per Dongbam-Mensem, JCA (now PCA) adopted the following definition of ‘power’ as put forward in Black’s Law Dictionary:

“The authority to declare what the law is and its construction, to decide and pronounce a judgement and carry it into effect between two persons and parties who bring a case before it for decision”.

Meaning of ‘Inherent Power’

Inherent jurisdiction has to do with the innate powers that enure in a court just because it is a court, and enable it look beyond the façade and ensure that the machinery of justice is smooth and well oiled, thus, minimising abuse. ‘Inherent Power’ has been defined by the Supreme Court, as the adjunct of powers conferred, which is invoked by a court, to ensure that the machinery of justice is duly applied and properly lubricated, and not abused. See C.B.N. v AHMED (2001) FWLR Pt. 56 pg. 670 and LAMAZ v TOTAL (NIGERIA) PLC (2007) All FWLR Pt. 364 Pg. 396, C.A. Inherent power is therefore, merely adjunct to power already expressly donated by Statute. It cannot supplant express power. It is axiomatic that where a law has expressly provided for a court’s jurisdiction, be it substantive or procedural, the question of resorting to its inherent power or jurisdiction ought not to arise at all: See FARDOUN v MBC INT. BANK (2006) All FWLR Pt.297 Pg. 1130 C.A. and KIGO NIG. LTD v HOLMAN BROS (1980) 5-7 S.C. 60 at 75. 

Thus, in COVALENT OIL v ECOBANK (2021) LCN/15135(CA), the Intermediate Court defined ‘inherent power of court’ as “those innate powers invoked by the court to ensure the smooth running of the machinery of justice, in order to curtail abuse and stamp its authority where necessary. They are what one may call, second-nature powers”.

The Apex Court in UGBA v SUSWAM (2014) LPELR-22882(SC) wholly adopted the dictum of Lord Morris in CONNELLY v DPP (1964) A.C. Pg. 1301, thus:

“There can be no doubt that a court which is endowed with a particular jurisdiction, has powers which are necessary to enable it act effectively within such jurisdiction. I would regard them as powers, which are inherent in its jurisdiction. A court must enjoy such powers in order to enforce its rules of practice, and to suppress any abuse of its process and to defeat any attempted thwarting of its process”.

Similarly, in OGWUEGBU v AGOMUO (1999) LPELR-6686(CA), the Court of Appeal held as follows: 

“Now, the inherent power of the court is that power which adheres to the court just because it is a court…the word ‘inherent’ derives from Latin ‘inhaerea’ meaning ‘to stick in’, ‘cling to’ or ‘cleaves to’ a court by the very reason only of its being such a court”.

With great erudition, the Apex Court in ADIGUN v ATT-GEN. OF OYO STATE (No 2) (1987) LPELR-40648(SC), emphasised that:

“Inherent power of any court is that power which is itself essential to the very existence of the court as an institution, and to its ability to function as such institution charged with the dispensation of justice, such as the power to punish for contempt, the power to grant an adjournment in the interest of justice, etc. An inherent power has to be inherent, in the sense that it forms an essential element in the whole process of adjudication. It is innate in the court, and it is not a subject of specific grant by the Constitution or by legislation…Inherent powers of the court are therefore, those powers that are reasonably necessary for the administration of justice”.

Going by these definitions, it becomes clear that the general provisions of Section 6(6)(a) of the Constitution as aforesaid, cannot displace its specific provisions which confer a right of appeal in specified circumstances. We shall presently examine the latter issue.

Exercise of Right of Appeal by a Party or Non-Party

The specific provisions of the Constitution dealing with appeals by a party and non-parties might make the situation clearer, if not actually tilt the argument in favour of appeals as legitimate option open to the very person who is aggrieved by a decision of a court. Section 243(1) of the Constitution is instructive in this regard. It provides as follows: 

“Any right of appeal to the Court of Appeal from the decision of the Federal High Court conferred by this Constitution shall be exercised-

(a)In the case of civil proceedings at the instance of a party there to or with the leave of the Federal High Court or the High Court or the Court of Appeal, at the instance of any other person having an interest in the matter, and in the case of criminal proceedings, at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney General of the Federation or the Attorney General of a State to take over and continue or to discontinue such proceedings c at the instance of such other authorities or persons as may be prescribed”.

From the above provision, it is clear that the exercise of a right of appeal against a decision of a High Court by a non-party under the Constitution is subject to his obtaining the leave of court to do so. Such an interested person cannot just wake up to exercise that right on his whim and caprice as he has to proffer concrete, cogent and compelling reasons to convince the court to grant him the requisite leave.

However, curiously, no such impediment or condition is attached to the power (if not ‘right’) of a non-party to apply to the same court that gave a decision to set it aside. Why is this so? Why should it be easier for an ‘interloper’ to file a fresh action (or even apply for joinder via a motion) to challenge a court’s decision, than if he were to appeal against it to a higher court as a party? That is the sore question. It does not make sense to me; or does it to you? Nor can it be rationalised on the ground of any principle. Can it? If anything, I submit that it is anomalous, as it subordinates constitutional provisions to what are no more than conventions which are derived from common law. 

It is obvious that this is an aberration, because the Constitution is Supreme. I believe this point will be clearer when it is construed through the prism of a criminal conviction. The reason is that if the argument is to be taken to its logical conclusion, a convict should also be at liberty to apply to the same court that convicted him, to quash the conviction and/or sentence supposedly in exercise of its inherent powers to do so, based on fraud, concealment of facts, or non-disclosure of material facts and for lack of jurisdiction. 

That notion is, of course, preposterous. It is even more so, where that application is at the instance of a non-party, such as for instance, a relative, guardian, or next of kin, of the convict or even- hypothetically- a person who does not share any filial, consanguineous or other relationship with the convict. This is by no means farfetched, as that is the logical inference to be drawn from recognising that ‘right’ in civil cases. To me, any argument that this is only applicable to the latter and not the former, would simply fly in the face of the right to equal protection of the law under Article 3(2) of the African Charter and will accordingly be invalid. See ABACHA v FAWEHINMI (2000)6 NWLR Pt. 660, Pg. 228 at 315; IGP v ANPP (2007) 18 NWLR Pt. 1066 Pg. 457 at 500 and BLACK’S LAW DICTIONARY, 8th ed. Simply put, what is good for the goose, should be sauce for the gander.

Party, Non-Party and Locus Standi

Our jurisprudence is replete with instances where courts have set aside their own judgements on specified grounds including fraud, concealment of facts, lack of jurisdiction, etc. See, for instance, ANATOGU v IWEKA II (1995) 8 NWLR Pt. 415 Pg. 547, S.C. and OLUFUNMISE v FALANA (1990) 3 NWLR Pt. 136. In the latter case, the Supreme Court was however, unequivocal that an action to set aside a judgement allegedly obtained by fraud perpetrated by a party, can only succeed if it is established that “but for such fraud, the judgement would have been in favour of the other party”. This is obviously the judgement-debtor or the losing party; certainly not a stranger or interloper. This means that any other person who cries foul in the circumstances would lack the requisite locus to do so, and the court would be bereft of jurisdiction to entertain the action.  

Little wonder that such challenges have almost always been at the instance of a party to the litigation – the losing party, the judgement debtor. Not once has it been at the behest of a stranger to the proceedings, if not a meddlesome interloper. At least, not to my knowledge. I submit that the reason is quite obvious: the proper remedy available to such a person, is to appeal. 

No non-party to a judicial proceeding possesses locus standi to apply to set aside a final decision of a court of law, unless with leave – much less file a substantive action for the same purpose. That ‘right’ has traditionally been available as of right, only to a party to a suit, or if otherwise, with leave. A non-party may only challenge a court’s decision as of right in interlocutory matters (See, for example, Order 26 Rule 10(1) of the Federal High Court Procedure Rules 2019, which provide inter alia, that: “An application to vary or discharge an order made ex-parte may be made by the party or person affected within 14 days after the service”. 

It is my humble submission that, to recognise that capacity in such persons in final decisions would confer on them a superior status or advantage, were they to adopt the option of appealing as interested parties under the Constitution. Surely, such a scenario could not have been intended by the framers of the Constitution. 

Conclusion

It is clear from my above analysis, that the inherent powers of a court to set aside its own decisions at the instance of non-parties only enures in the narrowest of cases – in interlocutory matters – certainly not in final judgements. In the case of final judgements, only parties to the proceedings may do so as of right. Where a non-party desires to do so, he certainly requires leave of either the trial court or the Court of Appeal, as is spelt out in Section 243(1) of the Constitution as aforesaid. 

It is respectfully submitted that, any attempt by a non-party to challenge a final judgement through filing a fresh action or (even a motion) would be invalid, null and void, because such a person would lack the requisite locus, thus, robbing the court of jurisdiction. A contrary view, it is submitted, would encourage such persons to prefer that option as opposed to seeking leave to appeal as interested parties, thereby, reducing those constitutional provisions to dead letters. Just as the relatives or other interested parties apart from the prosecution in a criminal case cannot file a fresh action to quash the outcome of a criminal trial, so should such right not be available to non-parties in civil cases. Their only option or remedy, is to appeal with leave of either the trial court or the appellate court.