Aba South Local Government & Ors V. Mrs Leticia Nwajiobi & Ors (2007)
LawGlobal-Hub Lead Judgment Report
ABDULLAHI, J.C.A.
This is an appeal against the ruling of the High Court of justice, Aba, Abia State delivered on the 15th December, 1998 by Honourable Justice J. F. Ogbuagu (1) (as he then was). The appellants were the defendants in the court below, while the respondents were the plaintiffs in that court.
This appeal as can be gathered from the record of proceedings and the briefs of learned counsel on both sides has a chequered history. In a writ of summons dated 18th day of May, 1998, the plaintiffs now respondents took out the said writ against the defendants/appellants and claimed as follows:
“(a) A declaration that the plaintiffs are entitled to a quiet and peaceable possession (sic) their stalls at the Cementery Market, Eziukwu Road, Aba.
(b) A further declaration that the plaintiffs having been paying their stallage fee regularly cannot forcibly be ejected from Cementary Market, Eziukwu Road, Aba by the defendants.
(c) An injunction restraining the defendants from ejecting the plaintiffs.”
On the 8th day of July, 1998, when the matter came up before the learned trial Judge for hearing, learned counsel for the 3rd defendant/respondent Mr. Nwaogwugwu M. O. J. Esq. informed the court thus:
“My Lord, we have settled the matter out of court amicably. The terms of settlement have been in the court. I apply that the said settlement be made the judgment of the court.”
The learned trial Judge in response to the above held that:
“Since the parties have settled the matter amicably out of court, the ‘report of settlement of the above suit’ is hereby made the judgment of the court and is also a consent judgment. The document filed on the 3rd July, 1998 is hereby marked exhibit “A” and shall be pasted in the court record book.”
The report of settlement referred to above, without the heading reads thus:
“1. The plaintiffs shall be allocated forty (40) stores out of the about 119 stores now been constructed by Noonnec Nigeria Limited, after completion of the project.
- The plaintiffs are to collect and complete the official allocation forms from Noonnec (Nig.) Ltd. on payment of the prescribed fee of One Thousand Naira (N1,000.00) per form.
- The plaintiffs are to complete the allocation forms and submit same en bloc to Noonnec on or before 15th July, 1998.
- That plaintiffs shall pay the sum of N85, 000.00 (Eighty- Five Thousand Naira) per store to Noonnec Nigeria Ltd., instead of N 100, 000.00 (One Hundred Thousand Naira) paid by the other allotees.
- The plaintiffs shall be allocated stores in the area where they are presently occupying at the Cementary Market Eziukwu Road, Aba, i.e. starting from 4th Gate from School Road end to 3rd Gate at Cementary Road starting from the transformer.”
As can be gleaned from the record of proceedings of the trial court, the respondents tried to comply with the condition set out in the consent judgment but the appellants particularly the 3rd appellant did not co-operate with them. In fact, the 3rd appellant put various impediments to ensure that they did not implement the conditions therein contained in the consent judgment.
This attitude of the 3rd appellant, in my view prompted the respondents to file a motion on notice dated the 8th day of October, 1998, four months after the judgment was delivered praying for the following orders:
“(1) An order of court restraining the defendants/respondents from allocating any stores to any other person until they have complied with the judgment in this suit dated 8/7/98.
(2) An order of court restraining the 3rd defendants/respondents from further construction work at the
Eziukwu Market, Cement Road, subject matter of this suit dated 8/7/98.
(3) An order of court directing the applicants to pay the sum of N3, 400,000.00 into court in favour of the 3rd defendant.
(5) And that such payment shall be in full discharge of the plaintiffs’ obligation under the judgment.”
It is instructive to note at this stage that the motion was supported by a 31 paragraph affidavit deposed by John Amaechi the 2nd plaintiff/applicant on record. The averments I consider germane to this appeal are hereunder produced as follows:
“23. That our counsel has written several letters to Noonnec (Nig.) Ltd. inviting the company to come and collect the sum of Three Million, Four Hundred Thousand Naira (N3,400,000.00) now deposited with his Chambers, for the company’s benefit.
- That unless the Honourable Court grants the reliefs claimed in the motion paper, the 3rd defendant will flout the consent judgment with impunity, on the grounds that we have not paid the company as per the consent judgment.
- That the 3rd defendant company is evading to be paid the allocation fee.”
On the 15th December, 1998, when the motion came before the learned trial Judge, the following proceedings were recorded as follows:
“Iwezor, Esq. – says – My Lord, on the last date of judgment i.e. – 19th November, 1998, Mr. Nnamdi
Nwokeukwu of counsel appears for the defendants/respondent. On that day, I withdrew all the applications for committal and he did not ask for costs and the applications were struck out.
Okonkwo Esq. – says – My Lord, I believe in the sincerity (sic) of telling the truth. On the endorsements on our file by Mr. Amadi Nwokeukwu shows that the motion for committal had been withdrawn, but the motion moved today had not been served on him. We only prepared a counter-affidavit in respect of the motions for committal.
Iwezor Esq. – My Lord, – I was sure that the 1st – 2nd defendants/respondents had been served. The bailiff Mr. Ariekpere brought out his process book and he discovered that he had served the 1st and 2nd defendant/respondents with the instant motion. Unfortunately, I did not collect a photocopy from him. However, since our application is particularly aimed against the 3rd defendant/respondent I still move in terms of our motion paper.
Court: Since Mr. Iwezor has now confined himself to their application only against the 3rd defendant/respondent who in spite of the service on them of the instant motion paper since 8th October, 1998 have failed or refused to file a counter-affidavit the court grants the said prayers Nos. 1, 3 and 4 of the motion paper only against the 3rd defendant/respondent. Their failure to file any counter-affidavit is deemed in law and by the court that they accept as true and correct the said averments in support of the motion. Therefore, order as prayed. No order as to costs.
(Sgd.) I. F. Ogbuagu (Judge) 15/12/98.”
Dissatisfied with the ruling of the learned trial Judge, the appellants appealed to this court on an initial notice of appeal which carried three grounds, dated 16th day of December, 1998 and filed on 17th December, 1998. With the leave of this court, two additional grounds were also filed. Again, on the 30th October, 2002, a motion on notice seeking leave of this court for respondents/applicants to amend and record of proceedings of the lower court to add the affidavit of service of the bailiff who served the motion which was heard and determined on 15/12/98 was granted.
The amended grounds of appeal without their particulars are as follows:
Ground One
“The learned trial Judge erred in law when he granted the application of the respondents contained in their motion on notice dated 8th October, 1998 and filed on 8th October, 1998.
Ground 2
The learned trial Judge erred in law when he granted the application of the respondents as plaintiffs/applicant, in the court below which did not disclose enough facts to warrant the court to exercise his discretion in their favour.
Ground Three
The learned trial Judge erred in law when he granted the application of the respondents as applicants in the court below when they clearly disobeyed the order of the Honourable Court contained in the judgment of the court dated 8th July 1998.
Ground Four
His Lordship the learned trial Judge at the court below misdirected himself in law and the decision/ruling which he gave is in breach of the appellants’ fundamental right to fair hearing.
Ground Five
The learned trial Judge erred in law when he made an order directing the applicants to pay the sum of N3, 400,000.00 into court in favour of the 3rd appellant and that such payment shall be in full discharge of the respondents’ obligation under the judgment.”
In a brief settled by C. Ike Inegbu, Esq., learned counsel formulated five issues for determination as follows:
“1. Whether the learned trial Judge was justified when he proceeded to hear the motion on notice without ensuring that the defendants had been served with the motion on notice and without giving the defendants an opportunity of filing a counter affidavit and of being heard (ground 4).
- Whether the learned trial Judge was justified when he heard and granted the application of the plaintiffs after the suit had been concluded and judgment delivered. (ground 1)
- Whether the learned trial Judge was justified when he made an order directing the plaintiffs to pay the sum of N3, 400,000.00 into court when same did not form part of the agreement of the parties giving rise to the judgment (ground 5).
- Whether the learned trial Judge was right when he granted the application of the plaintiffs when they clearly disobeyed and/or did not abide by the order of the court contained in the judgment of the court dated 8th July, 1998. (ground 3)
- Whether the learned trial Judge was right when he made an order of injunction against the defendants (ground 2).”
For his part, learned counsel formulated two issues for determination as stated hereunder:
“(1) Did the learned trial Judge rightly exercise his discretion in granting the application?
(2) Was the application granted in breach of the right to fair hearing?
On the 31st October, 2007 when the appeal came for hearing before us, learned counsel for the appellants adopted the appellants’ brief dated 30/10/02 and deemed filed by the order of this court on 6/11/2002 as well as their reply-brief dated 28/03/2007. Learned counsel urged us to allow the appeal and set aside the order of the lower court made on 15/12/1998.
Learned counsels for the respondents on the other hand, adopted their brief dated 09/03/07 which was deemed filed on 13/03/07 vide the order of the court made on 06/03/2007.
I have carefully examined the issues formulated by learned counsel for and against the appeal under consideration and I am of opinion that issues No.2 and 3 formulated by the appellants can be treated together and is what I will do anon.
Issue No.1
Issue number one is whether the learned trial Judge below was justified when he proceeded to hear the motion on notice without ensuring that the defendants had been served with the motion on notice and without giving the defendants an opportunity of filing a counter-affidavit and of being heard.
Learned counsel argued that the learned trial Judge misdirected himself in law and the decision he gave was in breach of the appellants’ fundamental right to fair hearing when he proceeded to hear the motion on notice without first ensuring that the defendants (appellants herein) had been served with the motion on notice and without giving the defendants an opportunity of filing a counter-affidavit and/or of being heard.
Learned counsel contended that the defendants (appellants herein) informed the court that they had not been served with the motion on notice. Learned counsel further contended that failure to serve the motion on notice on the appellants before same was heard and decision reached renders the proceedings void and same ought to be set aside. He relied on the cases of Wema Bank (Nig.) Plc v. Odulaja (2000) 7 NWLR (Pt.633) 1, (2000) 2 WRN p. 10 and Obimonure v. Erinosho (1966) 2 SCNLR 228, (1966) I All NLR p. 250.
Learned counsel argued that the appellants asked for an adjournment but instead of adjourning same learned trial Judge proceeded with the hearing without giving them an opportunity to file a counter-affidavit. This learned counsel further argued is breach of the appellants’ right to fair hearing. By shutting the appellants out, it occasioned a miscarriage of justice. He relied on the case of United Shipping And Trading Co. Inc. v. Agro Allied Development Ent. Ltd. (2000) 9 WRN P. 9.
It is the submission of the learned counsel that, the learned trial Judge in not calling upon the appellant to proceed with the case before ruling on the motion on notice amounted to denial of fair hearing and occasioned a miscarriage of justice. Learned counsel further submitted that the learned trial Judge failed to communicate to the appellants’ counsel that he had refused their application before proceeding with the ruling. This, learned counsel opined amounted to denying the appellants their right to fair hearing. He referred us to the case of Albert Ilona & Ors. v. Ojugbeli Dei & Ors. (1971) 1 All NLR p.8.
It is the contention of the learned counsel that the learned trial Judge had an option to award costs against the appellants instead of completely shutting them out. He referred the court to the case of Alh. Raji Akinwale v. Bank of The North (2001) 4 NWLR (Pt.704) A 448, (2002) 13WNR p. 19. Learned counsel then urged us to resolve the first issue in the negative and in favour of the appellants and to hold that it was improper for the court below to have adopted a procedure which necessarily meant that the appellants were not afforded a fair hearing.
The respondents’ counsel on the other hand submitted that there was no breach of the right to fair hearing. The record of appeal shows that the application was moved against the 3rd appellant only and the court found that the 3rd appellant was served on 8th October, 1999. Learned counsel also contended that in spite of the service, the 3rd appellant did not file a counter-affidavit. Learned counsel submitted that since the appellants failed to appeal against the specific finding of the learned trial Judge on the issue of service all arguments canvassed by the learned counsel on behalf of the appellants on fair hearing and the rest of them are irrelevant and ought to be discountenanced. He relied on the case of Alechenu v. Oshoke (2002) 9 NWLR (Pt. 773) 521 at 535.
It is the submission of the learned counsel that once a finding of fact is made by a trial Judge, the appellate court cannot interfere unless the findings are not supported by evidence. He referred us to the case of Crushed Rock Ind. Ltd. v. Ububa (2002) 8 NWLR (Pt. 770) 522 at P. 557. He further submitted that even where the finding is not supported by evidence, the appellate court can only interfere when the party complaining has appealed against the findings. He relied on the case of Faro Bottling Company Ltd. v. Osuji (2002) 1 F NWLR (Pt. 748) p. 311 at 330 paras E- G.
Now, from the onset the question to be asked is, whether or not the appellants were served with the motion on notice that was moved by the respondents’ counsel. To answer this question recourse had to be made to the printed record of proceeding. On the 6th day of March, 2007, this court granted an application filed on behalf of the applicants now respondents in this appeal to file an additional record of appeal. The court accepted the said additional record which clearly shows that the 2nd appellant and indeed all the other appellants were served on the 8th of October, 1998.
That apart, the learned trial Judge made a finding of fact on this issue regarding the service of the motion moved by the respondents’ counsel which is the subject matter of the appeal under consideration in the following terms:
“Since Mr. Iwezor has now confined himself to their application only against the 3rd defendant/respondent who in spite of the service on them of the instant motion paper since 8th October, 1998 have failed or refuse to .file a counter-affidavit the court grants the said prayers No. 1, 3 and 4 of the motion paper only against the 3rd defendant/respondent”. (italics supplied for emphasis) See page 37 lines 19 to 24 of the record of appeal.
In the light of the foregoings, the question posed a while ago must be answered in the affirmative, that is to say that the appellants were served with the motion on notice which was moved by the respondents’ counsel on the 15th day of December, 1998.
The next question that must be asked and answered is whether in spite of the finding of the learned trial Judge, the appellants were served with the said motion, the appellants had challenged the said finding in the grounds of appeal they filed before this court, reproduced above. To answer this question, recourse had to be made to the printed records containing the said grounds of appeal. I must at this stage say that I have carefully and meticulously examined the said grounds of appeal and could not find where the appellants challenged the findings of the learned trial Judge on the issue of service.
In the case of Faro Bottling Company Ltd. v. Lawrence Osuji (supra) this court per Mangaji, JCA of blessed memory, held thus:
“Where, as in the instant case, a respondent did not cross-appeal to attack a finding in the judgment which finding the appellant did not appeal against, the respondent cannot attack such finding as it stands unchallenged; no argument tending to discredit it can be entertained. In the instance case therefore the respondent’s argument against the portion of the judgment of the trial court which portion was to the effect that exhibit II was not a contract document is not admissible and ought be discountenanced.” (P. 330, paras. E – G)
In sum, in the light of all that I said this issue is resolved in favour of the respondents and against the appellants.
Issues No.2 and 3
Issue No.2 is whether the learned trial Judge was justified when he heard and granted the application of the plaintiffs after the suit had been concluded and judgment delivered. (Ground 1). And  issue No.3 is whether the learned trial Judge was justified when he made an order directing the plaintiffs to pay the sum of N3,400, 000.00 into court when same did not form part of the agreement of the parties giving rise to the judgment (Ground 5).
Learned counsel submitted that the learned trial court erred in law when he heard and granted the application of the plaintiffs (respondents in this court) – after the suit has been concluded and judgment delivered. Learned counsel referred us to the case of Cardoso v. DalZiel (1986) 2 NWLR (Pt. 20) 1 and further submitted that, the court had after the said judgment became functus officio.
Learned counsel submitted that the learned Judge in the court below had no power to grant the application of the plaintiffs/respondents as the prayers were intended and did indeed vary and/or alter the terms of the settlement upon which the judgment of the D court was based. He relied on the cases of 1be v. Onuorah (No.2) (2001) 9 NWLR (Pt. 719) 519 esp. 520 – 525, Joe v. Nzegwu (2001) 24 WRN 113 and Adiguiz v. A.-G. Oyo State (No.2) (1987) 2 NWLR (Pt. 56) 97.
Learned counsel submitted that the terms of settlement which the parties adopted as consent judgment and which was filed in the court on the 3rd day of July, 1998 did not contain the requirement for the payment of the sum of N3, 400,000.00 into the court in favour of the 3rd defendant. Learned counsel went to contend that on the 15th day of December 1998 in a ruling on the motion on notice, the  learned trial Judge made an order directing the plaintiffs to pay the sum of N3, 400,000.00 in favour of the defendants (See pages 36 37 of the record). This order did not form part of the agreement upon which the judgment was based.
It is the submission of the learned counsel that what the learned trial Judge did was to change the terms of the settlement and the judgment in favour of the plaintiffs/respondents. He relied on the case of Alhaji A. Ahmed & Co. (Nig.) Ltd. v. A.I.B. Ltd. (2001) 10 NWLR (Pt. 721) 391 at 396. Learned counsel urged us to resolve this issue in favour of the appellants.
On the other hand, learned counsel for the respondents submitted that the learned trial Judge rightly heard the application under Order 40 rule 7 of the High Court of Abia State (Civil Procedure) Rules, 2001 which provides thus:
“The court, at the time of giving any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the court thinks fit, and may order interest at a rate not exceeding ten per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be.”
Learned counsel further submitted that even as they concede that a court is functus officio after judgment, it is permissible for the court to make consequential orders subsequent to the judgment in order to give more effect to the judgment. He relied on the case of Obayagbona v. Obazee (1972) 5 SC 247.
Learned counsel further submitted that the consent judgment merely declared the rights of the respondents to the stores. At that stage, it was merely a declaratory judgment or order. Accordingly, he went on, it required further or subsequent proceedings to protect a violation of the rights. He relied on the case of Government of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) p. 592 at p. 606.
Now, in Black’s Law Dictionary 8th Edition, p. 696, functus officio is defined thus:
“(Latin ‘having performed his or her office’) (of an officer or official body) without authority or legal competence because the duties and functions of the original commission have been fully accomplished.”
It is now settled in a long chain of decided authorities that after a Judge has delivered a judgment in a matter, he has become functus officio to the extent that the only jurisdiction left in the court is the correction of accidental slips or errors under the “slip rule”. In the case of Joe v. Nzegwu (2001) 24 WRN 113, the court held that after delivering of a judgment, the only jurisdiction left in the lower court is the correction of accidental slips or errors under the “slips rules”.
Again, in the case of Ibe v. Onuorah (No.2) (supra) it was held that the court has no jurisdiction constitutional, statutory or inherent to review its own orders once it has delivered a judgment. See the cases of Alli A. Ahmed & Co. Ltd. v. A.I.B. Ltd. (2001) 10 NWLR (Pt. 721) p. 391; Intra Motors (Nig.) Plc v. Akinloye (2001) 6 NWLR (Pt. 708) 61 and NICON v. Power & Industrial Eng. Co. Ltd. (1990) 1 NWLR (Pt. 129) p. 697. Learned counsel for the respondents urged us to hold that the application which was heard on 15th December, 1998 was not for the purpose of a review of the judgment and the order made did not review the judgment. The order he further contended was merely to give effect to the judgment. It was consequential to the consent  judgment. With due respect, to the learned counsel, I cannot but disagree with this submission in view of the avalanche of authorities cited (supra). I am of the strong view that the order had the effect of changing the terms of settlement agreed by the parties, i.e. paying the sum of N3.400, 000.00 into the court instead of paying N85, 000.00 per store to the 3rd respondent/appellant.
I am of the strong view also that the learned trial Judge having delivered the judgment in this matter on the 15/12/98 has become functus officio in so far as this suit which is the subject matter of this appeal is concerned. In other words, having performed his functions fully by delivering the said judgment, he has no further authority or legal competence to entertain an application that would have the effect of changing his decision. The learned trial Judge was clearly in error by entertaining the application, and the ruling he delivered on 15/12/98 cannot stand.
In the light of the foregoings, issues NO.2 and 3 are resolved in favour of the appellants and against the respondents.
Issue No.4 is whether the learned trial Judge was right when he granted the application of the plaintiffs when they clearly disobeyed and/or did not abide by the order of the court contained in the judgment of the court dated 8th July, 1998.
On this issue, learned counsel for the appellants submitted that the learned trial Judge was in error when he heard and granted the application of the plaintiffs (appellants) herein) when they clearly disobeyed and/or did not abide by the orders of court contained in the judgment of the court dated 8th July, 1998.
Learned counsel contended that the judgment of the court based on the terms of settlement filed in court ordered the plaintiffs (respondents herein) to complete allocation forms and submit same to the 3rd defendant (3rd appellant herein) on or before 15th July 1998 (records page 29 lines 27 – 29). The plaintiffs (respondents herein) did not comply with the said order. And by the order of the court appealed against the court did not put into consideration the failure of the plaintiffs (appellants herein) to comply with the said order, learned Counsel further contended. He relied on the case of Shugaba v. Union Bank (Nig.) Plc (1999) II NWLR (Pt. 627) 459, (2000) 24 WRN 109.
It is trite that where a party has refused to implement a court order the court will not give him audience. Courts do not exercise its discretionary powers to those who flout its orders. To ask a court to exercise its discretion in ones favour when he did not obey its order amount to an abuse of court process.The question to ask is, did the respondents disobey the court’s order on the submission of the application forms? From the printed record, the respondents were ordered to fill the forms and submit same to the 3rd appellants/respondents on or before the 15th July, 1998. In a supporting affidavit deposed to by the 2nd respondent, John Amaechi, which the appellants/respondents did not file a counter-affidavit, the deponent deposed as follows:
“11. That on 15/7/98, the Managing Director of the 3rd defendant company, Mr. Nnamdi Nwachukwu through his staff gave to us the 40 Forms and we paid to him the sum of N40, 000.00 which payment the 3rd defendant company later acknowledged receipt.
- That a Photostat copy of the receipt later given to us by the 3rd defendant company is exhibited herewith and marked as exhibit ‘D’.
- That on 15/7/98, we completed the allocation forms.
- That on the same date, we took the 40 Forms (duly completed) and the sum of (Three Million Four Hundred Thousand Naira N3, 400,000.00 being the allocation fee for the 40 stores to the 3rd defendant company.”
It is instructive to note that from the averments of the said affidavit reproduced above, it cannot be said that the appellants had disobeyed the order of the learned trial Judge for the forms were completed and submitted on 15/12/98 as directed by the learned trial Judge. This issue is resolved in favour of the respondents and against the appellants.
The last but not the least issue for determination is issue No.5 which is whether the teamed trial Judge was right when he made an order of injunction against the defendants/appellants. It is the submission of the learned counsel that the learned trial Judge erred in law when he made an order of injunction against the defendants when the order was not sought for by the plaintiffs in Their writ of summons neither did the plaintiffs (respondents herein) give an undertaking as to damages. They did not also establish that the balance of convenience is in their favour.
The question that arises from the above submission of the learned counsel is, whether in the writ of summons, the plaintiffs/respondents asked for an injunctive relief. To answer this question recourse had to be made to the printed record of proceedings of the trial court.
The claim of the plaintiffs reads thus:
“(a) A declaration that the plaintiffs are entitled to a quiet and peaceable possession (sic) their stalls at the Cemetery Market, Eziukwu Road, Aba.
(b) A further declaration that the plaintiffs having been paying their stallage fee regularly cannot forcibly be ejected from Cemetery Market, Eziukwu Road, Aba by the defendants.
An injunction restraining the defendants from ejecting the plaintiffs.”
It is pertinent to state at this juncture that the injunctive relief sought for by the plaintiffs/respondents in their writ of summons is quite different from what they claimed in the motion they filed and which was moved by their counsel on 15/12/1998. In the said motion, the plaintiffs/respondents pray for an order of court restraining the defendants/respondents from allocating any stores to any other person until they have complied with the judgment in the suit dated 8/7/98.
In the case Salau v. Para-Koyi (2001) 13 NWLR (Pt. 731) p. 602, this court per Galadima (JCA) held thus:
“…before the lower court can grant injunction after judgment such injunctive relief must have been claimed in the writ of summons.”
In the light of the above, I hasten to say that the learned trial Judge erred in law by granting an injunctive relief which was not claimed by the respondents in the writ of summons. This issue is resolved in favour of the appellants and against the respondents.
In the final analysis, this appeal succeeds notwithstanding my H conclusions on issues No.1 and 4. Accordingly, the ruling of the lower court delivered on the 15th December, 1998 is set aside. The motion dated 20th day of September, 2001 and filed in the court below is hereby struck out.
Parties in this appeal shall bear their own costs.
Other Citations: (2007)LCN/2563(CA)
