EXCEPTIONS AND LIMITATIONS TO THE CONCEPT OF FUNCTUS OFFICIO

It is perhaps one of the most settled judicial principles, if not even the most, that once a court delivers its judgement or makes a decision as regards a particular matter, it becomes “functus officio” and afterwards does not have the power to revisit the same subject matter to adjudicate over it once again. This principle is however not sacrosanct, as there exists some exceptions to its generality. This write up shall border on the meaning and essence of the concept of functus officio and the exceptions thereto, in the light of the decision of the court in Abinde v. Salako (2025) 3 NWLR (Pt. 1978) 159. Concise account of relevant facts of the case is as follows:

The appellants, as plaintiffs, through a writ of summons signed by a law firm, against one Alhaja Aduke Salami at the trial court, sought:

• a declaration of lawful ownership over a particular parcel of land;

• a perpetual injunction restraining the defendant, her servants, agents, workers, representatives or privies from further committing any acts of trespass on or interfering with the plaintiff’s use of the aforementioned land;

• General and special damages for trespass committed on the land and destruction of plaintiff’s structures in the sum of (N3,000,000) Three Million Naira against the defendant.

The appellants proceeded to trial in the absence of a defendant and obtained a default judgment on the 22nd day of May 1998. After obtaining judgment, the appellants obtained a warrant of execution dated the 3rd day of November 2000 but levied execution on 15/10/2009, nine years later.

It however turned out that the Alhaja Aduke Salami that the appellants as plaintiffs brought their suit against was a non-existent person. The respondent, being the owner of the land, only became aware of the judgment against her property the moment the appellants sought to levy the execution. Upon finding out, the respondent filed an application at the trial court to set aside the judgment and execution. The trial court refused the respondent’s application. The respondent proceeded to the Court of Appeal and applied for leave to appeal as an interested party and same was granted by the Court of Appeal on 19th day of March, 2012. After obtaining the leave, the respondent filed a notice of appeal 28th March, 2012. . While waiting for the record of appeal to be compiled and transmitted so the appeal would be deemed entered, the respondent filed a motion before the trial court, praying to the court for:

• An order setting aside the warrant of possession dated the 3rd day of November 2000 and the notice of attachment dated 10th day of November 2000;

• An order of the court setting aside the execution of the judgment of the court carried out on the 15th day of October 2009;

• An order of the court that the applicant’s property be restored to her;

• An order that the respondents pay to the applicants all the rents collected since the year 2009 from the tenant on the applicant’s property; among others.

The learned trial Judge, however, refused the said application to set aside the execution on the ground that the trial Court no longer had jurisdiction and had become functus officio since the respondent had filed an appeal at the Court of Appeal.

Dissatisfied, the respondent appealed against the ruling to the Court of Appeal. The Court of Appeal in its judgment delivered on 28th day of February, 2017, unanimously allowed the appeal and granted the prayers sought by the respondent and set aside the ruling of the trial court. The court also granted the respondent all the prayers as prayed on the motion paper dated 2/7/2012.

The appellants, dissatisfied with the judgment of the Court of Appeal, appealed to the Supreme Court, seeking the court to determine: 

• Whether the Justices of the Court of Appeal were right to hold that the lower court ought to have set aside its judgment pending the appeal at the Court of Appeal; and

• Whether the Justices of the Court of Appeal were right to have held that the appellants’ writ of summons and statement of claim in the trial suit were invalid and the consequent execution made there upon is a nullity.

The appellants’ counsel argued that it was wrong for the Court of Appeal to determine that the trial Court was not functus officio in respect of the orders sought and it should have granted the orders as prayed. He also submitted that having found that the appellants had provided sound evidence of ownership of the land and declared that the appellants are lawful owners thereof with order restraining the respondent from further trespassing on the land howsoever, the court became functus officio as to the ownership of the land and right to possession by the respondent. He opined that the motion sought absolute orders from the trial court which would have reversed the substantive judgment of the trial court. He also sought to persuade the Court by the argument that the respondent at the time of bringing the application dated 2nd July, 2012 before the Trial Judge already had a notice of appeal dated 28th March, 2012 before the Court of Appeal effectively challenging the jurisdiction of the lower court for entering judgment in favour of the appellants. In the face of such valid appeal at the Court of Appeal, the learned trial Judge could then not determine the prayers of the respondent as contained in the Motion.

The respondent’s counsel argued in reply that a court can only become functus officio once it has delivered a judgment or made an order on the merit in respect of an issue or matter argued before it. He also argued that there was no appeal at the Court of Appeal as at the time of seeking the motion, because the record had not been entered there.

The apex court, in determining the case, examined the concept of “functus officio”, holding thus, per Ogunwunmiju, JSC:

“My Lords, permit me to state here that the term functus officio is bound up with the doctrine of res judicata, which prevents (in the absence of statutory authority) the re-opening of a matter before the same court, tribunal or other statutory actor that rendered the final decision. Functus officio derives from “fungi”: to perform, end or expire (cognate to the ordinary English word “defunct”). Res judicata means “the thing has been decided” and derives from the principle “interest reipublicae ut sit finis litium” (it is for the good of the commonwealth that there be a terminus to litigation).”

Having defined the essence of the concept of functus officio, the apex court went ahead to state that:

“My Lords, the concept of functus officio which precludes the same court or courts of co-ordinate jurisdiction from reviewing their decisions or acts has its own limitation. It is not absolute. An action done without jurisdiction or which are ultra vires the powers of the court is a nullity and are clearly outside the concept of functus officio.”

It is evident from the above that the concept of functus officio, which connotes the inability of a court or courts of coordinate jurisdiction to revisit a matter when decided, is a general rule with an exception. 

Where a court happens to have given a judgment, ruling order or decision that is null and void ab initio or there was a fundamental defect in the proceedings which vitiates and renders the same incompetent and invalid, the court is then NOT functus officio, and the court may set aside the earlier decision whilst not acting in ultra vires of its powers.

About the Authors:

Habeebullah Boluwatife Hassan and Harun Ayomide Alamin are undergraduate law students and members of the Research and Litigation Directorate, Solace Chambers, Bayero University, Kano. They can be reached via +2349036512217 and +2348120616733, respectively.