Madam Catherine Uddoh & Ors V. Engr. Ugochukwu Uddoh (2009)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an appeal against the decision of the High Court of Rivers State Port Harcourt, Judicial Division presided over by Hon. Justice J.N. Akpughunum delivered on the 18th day of January 2007. In that case the Appellants were the claimants at the Court below.
They commenced a suit No. PHC/9S6/2006 by originating summons dated 20/1/2006 praying for the determination of the following questions:
(i) Whether the consent judgment entered by this Honourable Court on the- 6th day of December, 2004 in Suit PHC/27S/2004: Engr. Ugochukwu Uddoh Vs. Jude C. Uddoh, was a judgment which this Honourable Court had jurisdiction to enter in so far as it concerned the Estate of Patrick Nzeama Uddoh (deceased) and the administration thereof.
(ii) Whether the terms of settlement filed in this Court on the 18th day of October, 2004 in the said Suit No. PHC/27S/2004: Engr. Ugochukwu Uddoh Vs. Jude C. Uddoh and signed by Engr. Ugochukwu Uddoh and Jude U. Uddoh was valid and competent in so far as all the beneficiaries interested in the Estate of Patrick Nzeama uddoh (deceased) and the administrators of the said Estate were not parties to that suit and not parties to the purported terms of settlement.
(iii) Whether Suit No. PHC/27512004: Engr. Ugochukwu Uddoh Vs. Jude C. Uddoh was properly constituted in so far as the Estate of Patrick Nzeama Uddoh (deceased) is concerned so as to support the purported terms of settlement signed by Engr. Ugochukwu Uddoh and Jude U. Uddoh and confer jurisdiction on this Court to adopt the said terms of settlement as the judgment of this Court.
(iv) Whether the consent judgment entered by this Honourable Court in Suit No. PHC/275/2004: Engr. Ugochukwu Uddoh Vs. Jude C. Uddoh is not altogether null and void being unconstitutional and given by this Honourable Court without jurisdiction.
(v) Whether this is not a proper case for this Court to set aside the consent judgment in Suit No. PHC/275/2004: Engr. Ugochukwu uddoh Vs. Jude C. Uddoh. (Record page 1-2)
Relying on the judicial interpretation Sought by the Appellants from the Court below, they prayed for the following orders:
(i) A declaration that the consent judgment entered by this Honourable Court on the 6th day of December, 2004 in Suit No. PHC/275/2004: ENGR. UGOCHUKWU
UDDOH V. JUDE C. UDDOH, was not a judgment which this Honourable Court had jurisdiction to enter in so far as it concerned the Estate of Patrick Nzeama Uddoh (deceased) and the administration thereof.
(ii) A declaration that the Terms of Settlement filed in this court of 18th day of October, 2004: in the suit No. PHC/275/2004: UDDOH VS. JUDE C.UDDOH and signed by Engr Ugochukwu Uddoh and Jude U. Uddoh was invalid and incompetent in so far as all the beneficiaries interested in the Estate of Patrick Nzeama Uddoh (deceased) and the administrators of the said estate were not parties to the said and not parties to the purported Terms of Settlement.
(iii) A declaration that Suit No. PHC/2752004: ENGR. UGOCHUKWU UDDOH VS. JUDE C. UDDOH was improperly constituted in so far as the Estate of Patrick
Nzeama Uddoh (deceased) is concerned and therefore cannot support the Purported Terms of Settlement signed by Engr. Ugochukwu Uddoh and Jude U. Uddoh nor confer jurisdiction on this Honourable Court to adopt the said Terms of Settlement as the judgment of this Court.
iv) A declaration that the consent judgment entered by this Honourable Court in Suit NO. PHC/275/2004: ENGR. UGOCHUKWU UDDOH VS. JUDE C. UDDOH is altogether null and void being unconstitutional and given by this Honourable Court without jurisdiction.
(v) An order of this Honourable court setting aside its consent judgment dated 6th day of December, 2004 in Suit No. PHC/275/2004: ENGR. UGOCHUKWU UDDOH VS. JUDE C. UDDOH, on the ground that the said consent judgment was coloured by mistake on the part of the parties and fraud on the part of the defendant and given without jurisdiction.
(vi) Any other just and convenient order having regard to the circumstances of this case. See pages 2 and 3 of the record
As required by the Rules of Court below the appellant filed a written address in support of the originating summons. When the Defendant/Respondent was served with the originating Summons and the address in support, he then filed an application praying for an order striking out the suit for being incompetent, an abuse of process and therefore outside the Jurisdiction of the Court. The grounds for this objection set out in the schedule to the motion are as follows:
1. The action was not commenced in satisfaction of conditions precedent to the exercise of jurisdiction.
2. The action is an abuse of process.
3. The claimants have no locus standi to institute the action.
4. The action is improperly constituted.
5. The Court lacks jurisdiction to correct overturn the judgment of a Court of coordinate jurisdiction.
In compliance with the Rules of the Court below the Respondent filed a written address in support of the motion. In opposition the appellants filed their written
Reply on points of law.
On 11/12/2007, the parties adopted their addresses. The Court delivered its ruling on 18/1/2007 in favour of the Respondent stating thus:
“In other words non-parties cannot ask to set aside a consent judgment:
(1) In which they are not parties;
(2) In which they have not applied to be made parties;
(3) In which they have not applied to the Court for leave to appeal against its judgment.
(4) In which the parties have agreed to the Consent judgment. Even if there is a misrepresentation, it does not avail the Applicant if he is not a party. See the lease of Alhaji Raimi Edun v. Odan Community (1980) 8 – 11 SC P. 103 at 124.
The 1999 Constitution has made adequate provisions for a person affected by any judgment to appeal against such judgment as a party interested. See Section 243(a) of the 1999 constitution. Taking into consideration the reasons herein before set put, I therefore hold that this court lacks jurisdiction to hear the Notice of Originating Summons on the ground that it is incompetent. It is accordingly dismissed.
The claimants were totally dissatisfied with this decision, and accordingly filed a Notice of Appeal on 13/2/2007, containing two grounds of appeal shorn of their particulars. The grounds as reproduced hereunder:
GROUND ONE: ERROR IN LAW
His Lordship, Hon. Judge at the court below erred in law when she held that the claimants before her were not competent to seek to set aside the consent judgment
In suit No. PHC/275/2005: ENGR. UDOCHUKWU UDDOH V. JUDE C. UDDOH because the claimants were not parties to that suit and the consent
The 1999 Constitution has made adequate provisions, for a person affected by any judgment to appeal against such judgment as a party interested. See Section 243(a) of the 1999 Constitution”.
From the two grounds of appeal the Appellants formulated one Issue for determination of appeal. The issue is as follows:
“Whether His Lordship, the Honourable Judge at the Court below was Court when she held that the claimants/Appellants were not competent to seek by their suit to set aside the consent judgment in snit No. PHC/275/2005: ENGR.UDOCHUKWU UDDOH V. JUDE C. UDDOH on the ground that the claimants before her were not parties to that suit and consent judgment (This Issue covers grounds of appeal, 1 and 2)”
The Respondent on the other hand adopts the sole Issue raised by the Appellants for the determination of this appeal.
Now to the submissions of learned Counsel for the parties on the sole issue. On 19/5/2009, this appeal came up for hearing. Learned counsel for the Appellants M.U. Uzoma Esq identified the Appellants’ brief of argument dated 6/8/2007 and filed on 14/8/2007 and the Reply brief dated 26/1/2009 but filed on 27/1/2009. Without further amplification on the sole issue distilled for determination of the appeal, learned counsel has urged this court to allow the appeal, set aside the decision of the Court below thereby ordering that the suit filed by the Appellants Claimants be remitted to the Court below to be tried on the merit before another Judge. It is contended in the Appellants’ brief of argument that the consent judgment on question directly affected the Appellants as both Administrators of the Estate of late Patrick Nzeama Uddoh and as Beneficiaries of the Estate. That the Appellants therefore are entitled to bring a suit to set it aside because they considered it a nullity having been entered by the Court below without jurisdiction. That one of the Appellants (the 3rd Appellant) was a named Defendant and therefore was a party to the suit, and therefore one of the persons directly affected and interested in the subject matter of the consent judgment. As for the word (“party,” as defined in 6th Edition of Black’s Law Dictionary and which definition was relied upon by the learned trial judge), learned counsel for the Appellant submitted that the court below failed to appreciate the fact that the Appellant are beneficiaries and Administrators of the Estate of late Patrick Nzeama Uddoh, and therefore in either capacity persons directly affected and interested in the subject matter of the consent judgment and who ought to have been joined in the suit given rise to the consent judgment and whose non-joinder that suit is part of their complaint before the court below. Reliance was placed on the case YUSUF V DADA (1990) 4 NWLR (Pt.149) 657 at 682 – AG, where the Supreme Court cited with approval the in Williams, Mortimer and Sunnucks on Executors, administrators and Probate (16th Edition) at page 466. Relying on the decision in REIS V MOSANYA (1964) L.H,C,R 19 at 30 and OJUKWU V KAINE (1997( 9 NWLR (Pt.522) 613 AT 637, learned counsel submitted that in respect of those beneficiaries, who are not Administrators, it cannot be disputed that their non-joinder was enough to have defeated that suit which the consent judgment was founded. Again, that where letters of Administration have been granted then, until they are revoked and cancelled only the grantees have legal control over the affairs of the deceased’s Estate; and the legal right to control includes the right to institute an action in that capacity. It is submitted that the Appellants at the court below, particularly, the 1st to the 3rd Appellants who are the aggrieved Administrators of the Estate of late Patrick Nzeama Uddoh have the requisite legal right to bring an action against the Respondent who had acted in a manner inconsistent with the joint interest in possession of the Administrators of the Estate. On the nullity of a decision obtained by fraud, or misconception of facts, the case of VULCAN GASES LTD V. GESSEL CHAFT FUR IND. GASVEWER TUNC A.G. (G.I.V.) (2001) 9 NWLR (Pt. 719) 616 at 646 was cited in reliance, while the case of TALABI V. ADESEYE (1972) 8 – 9 SC. 20 at 40 was called in aid for the proper interpretation and what constitutes “fraud”.
Learned counsel for the Appellants summarized his submissions thus:
That the learned trial Judge railed to he guided by all the case cited to her in that regard, including the case of VULCAN GASES LTD V. G.P. IND. AG (supra). It is contended that in holding that the claimants were not parties to the Consent judgment, the learned trial Judge completely misconstrued the nature of the claimant’s suit before her and their complaint. It is also contended that, in holding that the claimants did not apply to be made parties to the suit which gave rise to the consent judgment, the trial judge also failed to appreciate the claimants’ case which is hat the consent judgment was obtained without them not excluding the 3rd claimant who was sued in person without any disclosure that the subject matter of the suit is the estate of Patrick Nzeama Uddoh, now deceased.
In holding that the claimants did not apply to the court for leave to appeal against the consent judgment, learned counsel submitted that the learned trial Judge failed to appreciate VULCAN GASES (supra), which is that the claimants as persons affected by the consent judgment do not require to appeal against the consent judgment, but they aloe entitled ex debito justiciae, as persons affected thereby to, by a separate suit, have the judgment set aside for being a nullity.
Responding to the Appellants’ Counsel’s submissions, learned Counsel for the Respondent, has contended that the Appellants’ claim at the court below was not based on any Deed, Will, Enactment or other Written Instrument and therefore did not seek the determination of any question of construction arising under any instrument required by Order 3 rule 5 of the High Court (Civil Procedure) Rules 2006 of Rivers State. That the appellants commenced suit No. PHC/950/2006 via originating summons seeking to set aside the consent judgment in suit No. PHC/27S/2005. Therefore, the Appellants did not bring themselves within the ambit of the Rules of Court or in line with settled principle of the law. Relying on the Supreme Court decisions in MADUKOLU V. NKEMDILIM (1962) 1 All NLR 587, on the competence of the court to entertain an action brought before it, learned counsel submitted that the Court below was right in its decision to have dismissed suit No. PHC/956/2006 for not being initiated by proper parties and therefore incompetent. Reliance is further placed on the case of ALH. RAIMI EDUN V. ODAN COMMUNITY (1980) 8 – 11 SC 103 at 124 and S. 243 (3) for the Principle of law that only parties to a judgment or contract or even an instrument can apply to set same aside. See further SOLANKE V. SOME FUN (1974) I SC 141 at 148, and 150 -151.
It is submitted by the learned counsel for the Respondent that the jurisdiction to set aside a judgment obtained by fraud cannot be activated by non-parties to the original action. That if the Appellants have grouse against the judgment in PHC/275/2095, their remedy lies in exercising their right of appellant pursuant to section 243(a) of 1999 Constitution as parties interested rather than calling upon court below to sit on appeal over judgment of a co-ordinate court by the improper” process of originating summons and based on the alleged non-joinder of parties to a snit which does not raise any issue of jurisdiction. To buttress this submission, learned Counsel cited NIG. ENG. WORKS LTD. V. DENAP LTD & A.G. RIVERS STATE (2001) 18 NWLR (Pt. 746) 726 at 752 -753.
In the Respondent’s Brief of argument filed on 12/1/2009 he adopted the issue raised by the Appellants for determination already set out above. I must observe and I agree with the learned counsel for the Appellants, however, that in paragraphs 4.3, 4.4, 4.5, 4.6, 4.7, 4.10 and 4.11 of his brief, the Respondent deviated from the issue for determination to argue extraneous matters outside the judgment of the Court below appealed against. It is not in doubt that the Respondents at the Court below filed a motion in which they challenged the competence of the suit and raised the same issues which they now missed in the above paragraphs set out.
The Appellants duly answered the Respondents at the Court below in the Appellants’ written submissions contained at pp. 115 – 1241 of the Records of Appeal. At (p.131) the court below, in its Ruling which I have set out above, sustained the preliminary objection of the Respondents only on the ground that the Appellants were not parties to suit No. PHC/275/2005: Engr. Ugochukwu Uddoh v. Jude C. Uddoh and cannot therefore ask to set aside that consent judgment. I agree with the Learned Senior Counsel for the Appellants that in determining the appeal, this court can only limit itself to the issue raised by both parties in the appeal. This I must do and accordingly discountenance some of the extraneous matters or points outside the judgment of the Court below appealed against for being non-sequitur.
The only clear issue upon which the court below terminated the Appellants’ suit in limine was because the Appellants were not Parties to suit No. PHC/275/2005 and therefore lacked locus standi to bring an application to set aside the consent judgment in that suit. The Appellants in his wisdom has adequately dealt with the issue in paragraphs 4.0 – 4.16 of the Appellants’ Brief of argument. The Respondent cannot seek to reargue before us those issues which formed part of their preliminary objection in the court below which the court did not determine or pronounce in favour of the Respondent. In law, options open to the Respondent who wishes to raise such issues, is to a cross-appeal or file Respondent’s Notice under Order 9 of the Court of Appeal Rules, 2007. This is with a view to varying the judgment of the lower court or to affirm it on other grounds: See ADEKEYE V. AKIN OLUGBADE (1987) 3 NWLR (Pt. 60) 214 at 226.
The Respondent having not filed any Notice of Cross-appeal or any Notice under the said Order 9 of the Rules of this Court and having adopted the sole issue raised by the Appellants, paragraphs 4.3, 4.4, 4.5, 4.6, 4.7, 4.10 and 4.11 of the Respondent’s brief dealing with extraneous issues ought to be ignored and discountenanced as they are out of order. However I am not unmindful of the fact that paragraphs 4.1, 4.2, 4.8, 4.9 of the Respondent’s brief are relevant as they are submissions and contentious intended to deal with the grouse of the Appellant in the judgment of the court below. By his own showing in paragraph 2.8 the Respondent conceded that central Issue for determination in the appeal is whether “non-party” to a suit is competent to seek to set aside a consent judgment, more so from a court of co-ordinate jurisdiction.
To my mind, decision of the court below that the suit before it is incompetent because the Appellants were not parties to the consent judgment and therefore had no right to sue and set it aside for being a nullity, is due to its failure to appreciate the substance of the Appellants’ case in suit No. PHC/275/2005.
The Appellants, as both Administrators of the Estate of one Patrick Nzeama Uddoh and as Beneficiaries of the Estate arc entitled to bring a suit to set aside the co sent judgment which they consider to be a nullity, having been entered by the court below without jurisdiction.
At page 8 paragraphs 2.6 of the Appellants’ brief it was seriously contended that the Respondent commenced the suit in his own name as plaintiff and not as Administrator of the Estate. He did neither join the other Administrators, nor the other beneficiaries and there is nothing in the Writ of summons, copied at pp. 23 – 26 of the Record showing that the suit concerned an Estate under Administration. The Respondent pronounced terms of settlement of the suit dated 4/10/2004 signed by him and a non-existent “Jude U. Uddoh” not the 3rd Appellant who endorsed on the terms of the settlement as party. On 6/12/2004, the Respondent through his counsel procured the terms of settlement to be made the under of the Court. There is nothing on the judgment/order to show that the 3rd Appellant who was listed as Defendant in the suit appeared or was represented by counsel. This briefly, was the state of affairs when the Appellants as Administrators/Beneficiaries commenced the instant action at the court below seeking essentially to set aside the said consent judgment which directly affected the Appellants as both Administrators and as Beneficiaries of the Estate. The Appellants therefore are entitled to bring a suit to set aside the consent judgment which they consider to be a nullity having been entered by the court below without jurisdiction. It is worthy of note that one of the Appellants was a named Defendant in the consent judgment which, on its face was based on terms of settlement, also containing his name as Defendant but signed by some other person as Defendant. I can not fathom or imagine how the learned trial judge came to the conclusion that all the “Appellants were not parties to the suit. In fact the 3rd Appellant was a party to the suit. I agree with the learned senior counsel that the learned trial judge, with due respect misapplied the word “party”
In either capacity, the Appellants are persons directly affected and interested in the subject matter of the consent judgment, which is the administration of estate of late Patrick Nzeama Uddoh. They ought to have been joined in the suit given rise to the consent judgment. The Appellants’ non-joinder is part of their complaint before the Court below. In YUSUFF V. DADA (supra) the Supreme Court considering the important position of Administrators\Administratrixes Executors\Executrixes in the administration of Estate of deceased, cited with approval the in “Williams, Mortimer and Sunnucks – Executors, Administrators and Probate (16th Edition) at page 466 thus:
“Joint representation: Where more than one executor or administrator is appointed, the joint office is treated as that of an individual person. Each executor represents the estate for all purpose subjects only to the statutory exceptions. They have a joint and entire interest in the estate (real and personal) of the testator or intestate which is incapable of being divided and in the case of death such interest vests in the survivor without any new grant by the court. Consequently, if one of two executors or administrators purports to grant or release his interest in the testator’s estate to the other, nothing passes because each was possessed of the whole before. Similarly the act of one in possessing himself of the effects is the act of the others, so as to entitle them to a joint interest in possession and joint right of action if needed.”
Note worthy, it is, that in respect of those Beneficiaries who are not Administrators, it cannot be disputed that their non joinder was enough to have defeated that suit upon which the consent judgment was founded.
In LONTANNA OJUKWU V. HON. KAINE (1997) 9 NWLR (Pt. 522) 613 637: & 40Rs, this Court correctly held that “where letters of Administration have been granted in respect of the estate of a deceased person until they are revoked and cancelled, only the grantees have legal control over the affairs of the deceased’s estate. The legal right of control includes the right to institute an action in that capacity.”
In the instant case the Appellants who were the claimants at the court below, particularly the 1st to the 3rd were aggrieved with the Administrators of the Estate of late Patrick Nzeama Uddoh. They have the requisite legal right to bring an action against the Respondent who had acted in a manner inconsistent with the joint interest in possession of the Administrators of the Estate.
Representative of an estate of a deceased has legal right to bring an action. His interests, for the purposes of such suit are well governed by the Rules of the court below. See Order 13 Rules 11 and 13 of the High court (Civil Procedure) Rules, Rivers State 2006.
These rules provide that the Administrators of an Estate may sue alone or jointly with the Beneficiaries to protect the Estate. The learned trial judge therefore, in my respectful view, must have erred when she held that the Appellants herein are not parties interested in a suit challenging a consent judgment obtained against the interest of the Estate which they are the Beneficiaries and Administrators.
The Appellants’ case before the court below is that the consent judgment was null and void having been obtained or procured by the Respondent herein in fraud of the Claimants, and therefore the court below lacked the jurisdiction to enter that judgment which judgment, in effect, infringed the claimants’ legal interest as Beneficiaries or Administrators. It is therefore the contention of the claimants that by virtue of their interest as both Beneficiaries and Administrix/ Administrators – of the Estate of the deceased Patrick Nzeama Uddoh under the Letters of Administration, they are indispensable parties without whose presence no adequate and effective consent judgment could be entered in determining the rights of parties before the court in that suit. They claim that they have interest in the controversy relating to the Estate and that the court cannot render a final decree without affecting their interest. Appellants particularly 1st – 3rd were perfectly entitled to commence the suit by originating summons within the con of Order 3 Rule 5 of the High Court (Civil Procedure) Rules 2006. They claim as Administrators under a Deed of Appointment. The other appellants also claim as beneficiaries of the same Estate. The Appellants’ locus standi is founded on the Letters of Administration Exhibits 1- 6 attached to the affidavit in support of the originating summons.
It has been held in IJENI & ORS V. IJENI and Ors. (1977) 9 CCHCJ 2175, that the High Court lacks power to appoint a Receiver to collect rents in respects of a property which is still being administered by Administrations under Letters of Administration which has not been revoked. The Court relied on an earlier decision of ASABORO V. MGD. ARUWAJI & ANOR. (1974) 1 All NLR (Pt.1) 154.
With due respect, the view expressed by the Learned trial Judge, at the court below to the effect that the 1999 Constitution had made adequate provisions for a person affected by any judgment to appeal against such judgment as a party interested is to over-look a plethora of decisions of this court and the recent apex court decision in SOKOTO STATE GOVT. V KAMDEX (NIG.) LTD (2007) 7 NWLR (Pt.1034) 446 and the most relevant to the instant case; VULCAN GASES LIMITED V. GESVERSCHAFT FUR INDUSTRIES GASVER WERTUNG A.G. (G.I.V.) (2001) 9 NWLR (Pt.719) 610 AT 646. The apex court states thus:
“Where, however, purported consent judgment is vitiated by fraud, mistake, misconception or by any other vice which would afford a ground for setting aside the compromise agreement on which the order was based, no true consent judgment binding on the parties would have emerged. The result, in such a case is that the so called consent judgment can be set aside but by a fresh action. See Talabi v. Adeseye (1972) 8 – 9 SC 20. The Court therefore has discretionary jurisdiction to examine the entire circumstances of a case in order to determine whether the alleged compromise agreement entered into by the parties should be sanctioned and made an order of court. (Underlining mine for emphasis)
In any event, at risk of repetition, but for the important point have made by the apex court; I still hold firm opinion that Administrators of an Estate are parties interested in a suit concerning the administration of the Estate. In the case of IBRAHIM V OJOMO (2004) 4 NWLR (Pt.862) 89 at 116, KALGO JSC. Made the point thus:
“since the right and interest of the Administrators or of an Estate in the Estate, they must operate together and the giving out of such right or interest by some of them to any one does not bind the others who do not give their consent thereto.”See also Yusuf v. Dada (Supra).
I have given the above passage a most careful consideration. I most respectfully endorse it as the correct position of the law. It is my view the Respondent could not have commenced his suit wherein he obtained the consent judgment, without joining the Beneficiaries/Administrators of the Estate who are the widow and children of the deceased. These are necessary parties to the suit. Where they are not made parties and the order of court is made against their wishes or interest, they are entitled to set aside ex debito justitiae.
In conclusion, I find substance and merit in this appeal and the same is hereby allowed. I hereby set aside the decision of the court below. The suit filed by the Appellants as Claimants is hereby remitted to the Hon. Chief Judge, High Court of Justice, Rivers State for assignment to another Judge for expeditious trial on the merit.
I assess and fix costs at N30, 000 in favour of the Appellants but against the Respondent.
Other Citations: (2009)LCN/3379(CA)
