Augustine Bassey Ene V. Chief Asuquo Asikpo & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

THERESA NGOLIKA ORJI-ABADUA, J.C.A.

This is an appeal against the ruling of the High Court of Cross River State, in the Calabar Judicial Division, presided over by S.M. Anjor J, and delivered on 26/4/2006 in Suit No C/326/94.

The facts giving rise to this appeal are that the Respondents instituted civil proceedings against the Appellant at the High Court, seeking for:

“(a) A declaration that all that parcel of land and the building thereon situate, lying at and known as No. 10 Wilkie Street, Calabar is the property of the Plaintiff which he acquired by customary gift from his first cousin, Ene Asuquo Ene in 1973 and was issued a Certificate of Occupancy No. CA/3239/88 thereof.

(b) A declaration that it is an act of lawlessness, illegality and threat to the peace, for the Defendants to break into the building put thereon by the Plaintiff and occupy same without any permission by the Plaintiff.

(c) An order ordering the Defendants to vacate the said property immediately with a prohibitive injunction against the Defendants, either by themselves, agents, allies, privies, principals or whomsoever from interfering with the Plaintiff’s right or peaceful enjoyment of the property by whatever means.”

The Plaintiff claims the following sums as special damages

(a) Cost of 6 large window frames at N350.00 = N2,100.00

(b) Cost of 2 medium sized Frames at N300.00 = N600.00

(c) Cost of 100 Ceiling Boards at N110.00 = N11,000.00

(d) Cost of 120 Louvers Glasses at N40.00 = N4,800.00

(e) Cost of Electrical Wiring and Fittings at N25,000.00 = N25,000.00

(f) Cost of Plumbing Works and Fittings = N21,000.00

(g) Cost of 6 Doors with Frames at N1,000.00 = N6,000.00

(h) Cost of one indoor built-in Italion Bar with

Marble Finishing = N70,000.00

Total value of property Removed = N142,000.00

“The Plaintiff also claims the sum of N500,000 as general damages”.

After the filing and exchange of pleadings by the parties, the suit was then set down for trial. The case suffered several adjournments between 19/12/2000 and 15 February, 2001, when the learned trial Judge permitted the Appellant to prove his case. However, in the middle of the testimony in chief of P.W.1, on 15/2/01, Learned Counsel for the Appellant arrived at the Court and announced his appearance for the Defendants. Thereafter, the matter was adjourned to 8/3/2001 for cross-examination.

On 8/3/2001, the Court, for inexplicable reasons on the record of this appeal, did not sit. It rather resumed sitting on 10/4/2001. On the said 10/4/01 both the Defendants and their Counsel were absent from Court and they did not communicate to the Court, the reasons for their absence nor applied for an adjournment. The matter was then further adjourned to 12/4/2001 for cross-examination.

The Court did not sit on 12/4/10, but sat on 2/8/2001. On 2/8/2001, the Plaintiff was in Court together with his Counsel, while one M.E. Ekpo Esq. appeared on behalf of the 1st Defendant. Then, Eno Offong Esq., Counsel for the 2nd Defendant wrote a letter applying for an adjournment. Based on Eno Offong’s letter, the matter was adjourned to 7/8/2001 for continuation of hearing. The matter was further adjourned to 7/6/2001 and 10/7/2001 respectively, on which dates, the Court did not sit, and, with the consent of both Counsel, it was adjourned to 13/8/2001. The Court did not sit on that 13/8/2001 but, on 29/11/2001 when again, the 2nd Defendant’s Counsel, Eno T. Offong Esq., wrote another letter for adjournment and it was fixed for 11/1/2002 for definite cross-examination of P.W.1. However, the Court did not sit on the said 11/1/2002. It rather sat on 27/2/2002.

On the said 27/2/2002, the Defendants and their Counsel were absent without presenting any letter requesting for an adjournment. The matter was subsequently adjourned to 28/2/2008. The Court did not sit on the said 28/2/2002. It resumed sitting on 29/4/2002.

On 29/4/2002, the Defendants and their Counsel were equally absent. As a result, Plaintiff’s Counsel addressed the Court, and, the Court then adjourned the matter to 22/5/2002 for judgment.

On 22/5/2002, the Court entered judgment in favour of the Plaintiff in default of appearance at the hearing.

I must observe that no indications were given on the record to prove that the Defendants were duly served with hearing notices on those occasions the Court sat in their absence.

It is, also, clear on the record that after judgment, the Defendants, i.e., the Respondents in this appeal, filed a Motion on Notice on 17/7/2002 before the lower Court for an extension of time within which to apply to set aside the said judgment, apparently after the time for applying for it to be set aside had elapsed. From the record before us, the said Motion came up before S. M. Anjor J., for the first time on 29/9/2004. See p. 61. Then, on 8/11/2004 when it came up for the second time, before His Lordship, the Defendants/Applicants Counsel, were absent. Only the Plaintiff/Judgment Creditor/Respondent’s Counsel, Dr. Tony Ukam merely appeared and applied that the said Motion be dismissed for want of diligent prosecution. It is pertinent to note that the date of 11/10/2004 which Learned Counsel referred to in his submission, the Court presided over by S. M. Anjor J., did not sit. Consequent upon the application of Dr. Ukam, the Defendants/Applicants’ Motion was dismissed. It must also be emphasised that the motion of 17/7/02 was not dismissed or determined by the Court on the merits, that is to say, after hearing arguments on the rights of both parties on the issue and due consideration. It was dismissed on the ground of lack of diligence on the part of the Applicants to prosecute the same.

So, having had their said application for extension of time within which to apply to set aside the said judgment, dismissed, and being out of time to have the order of dismissal set aside, the Appellants then applied to the Court by a Motion filed on 30/3/2005 for an order extending the time within which to apply to the Court to set aside the order dismissing their Motion to set aside the said judgment of 22/5/2002 and for an order setting aside the order dismissing the Motion to set aside the judgment entered in the suit on 22/5/2002 in default of appearance.

Following, the application of 30/3/2005, the Plaintiff, now the Appellant, filed a Notice of Preliminary Objection praying for dismissal of the said Motion on the grounds of (a) functus officio, (b) lack of jurisdiction, (c) abuse of Court process and (d) lack of locus standi of the 1st Defendant. .

After due consideration of submissions of respective Counsel for the parties, the Court then granted the prayers sought by the Defendants.

Being aggrieved by the said decision of the trial Court, the Plaintiff filed a Notice and Grounds of Appeal on 9/5/06 based on four grounds.

In the Appellant’s Brief of Argument settled by his Counsel, Dr Young Ukam, (OON), four issues were distilled for determination of this Court.

They are:

“(1) Whether the Learned trial Judge had erred in law to have entertained the matter when he was functus officio and whether the Learned trial Judge lacked the capacity and jurisdiction to entertain the motion dated 30th March, 2005, which purportedly sought for extension of time within which to apply to set aside the dismissed motion, which dismissed motion hitherto attempted to set aside the judgment of 22nd May, 2002.

(2) Whether the Learned trial Judge did not err in law when he ruled that the Defendants/Judgment Debtors/Respondents were not served with the hearing notice for the dismissed motion filed on 17/7/02.

(3) Whether the trial Judge did not err in law when he failed to make reference to the death of the 1st Defendant/Judgment Debtor/Respondent (The Principal Party) which was brought to his notice and

(4) Whether the Learned trial Judge did not commit error of law in abandoning a crucial and primary issue of contempt against the judgment debtor, and preferred rather to entertain the frivolous and belated motion which is rich only in the abuse of Court process.”

The Respondents in their Brief raised five issues for consideration thus:

“(1) Whether Leave of the High Court or Court of Appeal is required before this Appeal was filed?

(2) Whether the Learned trial Judge has the jurisdiction to entertain the motion of 30th March, 2005 which questioned his competence to dismiss the motion of 17th July, 2002?

(3) Whether failure of the Plaintiff/Appellant to serve the Defendants/Respondents with the Hearing Notice ordered by the Court did not oust the jurisdiction of the Court to dismiss the Defendants/Respondents motion filed on the 17th day of July, 2002 to set aside the judgment?

(4) Whether mere mention of the death of the 1st Defendant without any material to support the assertion was enough to stop the Court from hearing the motion of 30th March, 2005?

(5) Whether the Learned trial Judge was right in hearing the motion of 30th March, 2005 which challenged his jurisdiction to dismiss the motion of 17th day of July, 2002 to the detriment of the contempt proceedings?”

In respect of issue No.1, Learned Counsel for the Appellant argued that failure on the part of the Judgment Debtors/Respondents to bring the application of 30/5/05 timeously against a validly subsisting judgment and Order of Dismissal and their failure to pay the N2,000 cost awarded against them and N5,000 for relistment of a dismissed suit or motion as stipulated in the Practice Direction, issued by the Chief Judge of Cross River State, robbed the Court of its jurisdiction to entertain the motion.

Counsel further argued that the trial Court had become functus officio, and, as such, did not have the jurisdiction to hear the motion. He referred to the cases of Elebute vs. Falake (2002) 9 Q.R.R. p. 1 and Ononiwu vs. R.C.C. Ltd (2002) 2 Q.R.R. p. 230 H.2 (1995) 7 N.W.L.R Part 402 p. 217 and submitted that a Court has no power to reverse itself except:

(a) Where the judgment or order (sought to be set aside) is a nullity;

(b) Where it is a default judgment;

(c) Where new facts have been proved or unravelled which hitherto were not made known;

(d) Where fraud has been alleged;

(e) Where fresh evidence is found.

He, therefore, stressed that the Respondents’ case did not come within the category that could be revisited by the Court.

With regard to issue No.2, what Learned Counsel Appellant appeared to have argued was that the Defendants, who filed the said motion for setting cannot be heard to complain of non-service of hearing notices in respect of the motion on them. He cited the cases of NEC vs. Izuogu (1993) 2 N.W.L.R Part 275 p. 270 – 277, Atejioye vs. Ayeni (1998) 6 N.W.L.R Part 552 p. 133 (2002) 2 Q.R.R. 184 Ratio K and said that there must be an end to litigation.

On the third issue, Learned Counsel stated that he filed a preliminary objection informing the Court of the death of the 1st Defendant, yet argument, in respect of the said motion was made without the Defendant or the principal party to the suit, and, the Court made the orders on 26/4/2006. He cited the cases of Fadallah vs. Arewa iles Ltd (2002) 2 Q.R.R. 286 H 56, Uzochukwu vs. Eri (1997) 7 N.W.L.R. Part 514 p. 540, Union Bank of Nig. vs. Nwachukwu (2002) F.W.L.R. Part 6 p. 989, (2000) 2 Q.R.R. 247 H 2, Elebute vs. Falake (2002) 2 Q.R.R. 229, Ononiwo vs. RCC td (1995) 7 N.W.L.R. Part 402 p. 217, Menakaya vs. Menakaya (1994) 5 N.W.L.R. Part 345, 515, Ifediora vs. Ume (1988) 2 N.W.L.R. Part 74 p.5, Uzo vs. Nnaliomo (2002) F.W.L.R. Part 3 p. 46 and Oyovbiare vs. Omamurhomu (1999) 10 N.W.L.R. Part 621 p. 28 and stressed that the Court cannot approbate and reprobate by giving a judgment in 2002, dismissing a motion for setting aside the said judgment in 2004, and, then turning round in 2006, to grant leave to have that judgment set aside. He argued that both the judgment delivered in 2002 and the order of dismissal made by the Court in 2004 disposed of the rights of the parties.

Regarding issue NO.4, Counsel submitted that despite the Appellant’s initiation of the contempt proceedings, the trial Court failed to determine the same.

He submitted that every person against or in respect of whom an order is made by a Court of competent jurisdiction has an obligation to obey it unless, and until, that order is discharged whether, or not that order or judgment is, or believed to be void or irregular. A person who is in contempt of a subsisting Court order is not entitled to be granted Court’s discretion to enable him continue with the breach.

Counsel emphasized that it is the duty of the Court to protect and ensure that orders lawfully made are not rendered useless or nugatory by the action and conduct of the parties. He cited the cases of Lawal-Osula vs. Lawal-Osula (1995) 3 N.W.L.R. Part 382 p. 134, Shugaba VS. U.B.N. PLC (2002) 2 Q.R.R. H. 7, Peters vs. Ashamu (1995) 4 N.W.L.R. Part 388 p. 207, Akinfolarin vs. Akinnola (1994) 3 N.W.L.R. Part 335 p. 665, Mobil Oil Nig. Ltd vs. Assam (1995) 8 N.W.L.R. Part 412 p. 133, Ifekwu vs. Mgbako (1990) 3 N.W.L.R. Part 140 p. 590 and Abbas VS. Solomon (2001) 7 M.J.S.C 149 p. 153 (2002) 2 Q.R.R. 149 – 150 H. 28 in support and urged the Court to allow the appeal.

Learned Counsel for the Respondents, Eno T. Offong Esq., in the Respondents’ Brief regarding the first issue, contended that grounds “C” and “D” in the Appellant’s grounds of appeal filed on 9/5/2006 are not questions of law but of facts. He made reference to the cases of Ogbechie & ors VS. Onochie & Ors (1986) 7 N.S.C.C. 443 (No.1), Shanu & anor vs. Afribank (Nig.) Limited (2003) 1 N.W.L.R. Part 684 p. 390, Oba Felix Abidoye & Ors vs. Oba Jacob Alawode & Ors (2001) 4 S.C.M. p. 1, Comex Ltd vs. NAB Ltd (1997) 3 N.W.L.R. Part 496 p. 265, Metal Construction (W.A.) Ltd vs. Migliore (1990) 1 N.W.L.R. Part 126 p. 299, Nwadike vs. Ibekwe (1987) 4 N.W.L.R. Part 67 p. 718, Section 242(1) of the 1999 Constitution, Section 25(1) of the Court of Appeal Act, George Onobruchere & anor vs. Ivwromoebo Esegine & anor (1981) 2 S.C. 385 at 399 and Thor Ltd vs. First Civil Merchant Bank Ltd (2002) 3 S.CM 130 and submitted that it is not what the Appellant chooses to designate a ground of appeal that controls, rather, it is the nature of the ground of appeal read together with the particulars that characterizes the ground of appeal as one of pure law or mixed law and fact alone, and, where “Error in Law” merely reveals that it is a question of fact, the right of filing the grounds of appeal as of right is no more, except and until, leave is sought and obtained. Failure to obtain leave makes the appeal incompetent. He submitted that the appellant having failed to obtain leave before filing the Notice and Grounds of Appeal dated 9/5/2006 did not file a competent appeal in so far as his grounds “C” and “D” are concerned. He then urged that the Notice of Appeal be struck out.

On ground 2, Learned Counsel referred to the cases of Odunsi vs. Unmic (1998) 2 N.W.L.R. Part 536 p. 95 and Akinriboya vs. Akinsola (1998) 3 N.W.L.R. Part 540 p. 107 and submitted that the Court has power to set aside a default judgment or order made in default of appearance. In doing so, it has to consider whether:

(1) The Applicant has shown good reasons for being absent at the hearing;

(2) The Application was brought within the prescribed period;

(3) In an application for extension of time to bring the application, the Applicant gave reasons for the inability to bring the application to set aside the judgment; and

(4) The judgment or order was irregularly obtained.

He stressed that the Respondents duly gave reasons for their absence in Court due to the chequered history of the case being transferred form Maurice Eneji J’s Court to Agube J’s (as he then was) and to the Hon. Chief Judge of the State for re-assignment to another Court. He stated that the Respondents were not notified by any hearing notice of the transfer of the case to S. M. Anjor J’s Court. He said that the hearing notice ordered by the trial Court on 29th September, 2004 to be served on the Respondents, were never served on them, and, as such, they were not aware of the pendency of the Motion on Notice before S. M. Anjor J. So, on 8/11/2004 when the Motion came up without notification to the Respondents, the trial Court dismissed it.

Counsel then cited the cases of Adegoke Motors vs. Adesanya (1989) 3 N.W.L.R. Part 109 p. 250, Menakaya vs. Menakaya (2001) 12 S.C.M. P 107 at 133 and Atser vs. Gachi (1997) 6 N.W.L.R. Part 510 p. 609 and submitted that where an order has been made against a person in the absence of service of hearing notice on him, notifying him of the date of the proceedings, such person has a right under the law to apply to the Court that made such order to have it set aside on the ground of non-fulfillment of one of the conditions precedent to the granting of the order. He said that in such a situation, an appeal is not necessary. He submitted that the order of dismissal made by the Court on 8/11/2004 is a nullity, and, that being the case, the issue of payment of N2,000 costs and N5,000 relistment fee respectively does not arise. He also referred to Madukolu v. Nkemdilim (1962) 1 ALL N.L.R. 587.

On issue No. 3 which I found a bit interwoven with issue No.2, the Respondent’s Counsel submitted that service of a Court process on a party is very fundamental and where there is failure to do so, it robbed the Court of the competence and jurisdiction to adjudicate on the matter. Counsel cited the cases of Wema Bank (Nig) Ltd vs. Odulaja (2000) 3 S.C. 83, Hypolite vs. Egharevba (1998) 11 N.W.L.R. Part 575 p. 598, Amadi vs. NNPC (2000) 6 S.C Part 1 p. 66 and Akinbobola vs. Plisson (1991) 2 L.R.C.N P 415. He stated that on the date in question, the learned trial Judge never took any step to ensure that the Respondents were served with hearing notice as ordered by him before dismissing the said Defendants’ Motion filed on 17th July, 2002.

In relation to issue No.4, Counsel submitted that issue of death is an issue of fact that ought to be proved either scientifically or by production of documents like a death certificate. So, he who asserts must prove. He referred to s. 137 of the Evidence Act, the cases of Daudu vs. NNPC (1998) 2 N.W.L.R. Part 538 p. 385, Kala vs. Potiskum (1998) 3 N.W.L.R. Part 540 1, Braimah vs. Ahasi (1998) 13 N.W.L.R Part 581 p. 167, Itauma vs. Akpe-Ime (2000) 7 S.C. Part 1 p. 25, Juli vs. Mohammed (1999) 4 N.W.L.R Part 600 p. 682, Order 11 Rule 35 of the High Court (Civil Procedure) Rules of Cross River State, Akinbobola vs. Plisson (supra) and Menakaya vs. Menakaya (supra) and submitted that where a cause of action survives the death of a party, such action is not abated by death. He stated that the cause of action in the Court survived the party, and, one of the parties is also living.

Counsel contended that the said argument of Learned Counsel for the Appellant on the issue did not arise from the Appellant’s grounds of his notice of appeal nor the issues formulated by him.

On the question of the Court being functus officio, Counsel submitted that since the order made on 8/11/2004 dismissing the Motion filed on 17th July, 2002 was made without jurisdiction, and, therefore a nullity, the trial Court was competent to set aside the said null order of 8/11/04 and had not become functus officio.

With respect to issue No.5, Counsel submitted that it is settled law that when a Court is challenged, it is neater and better for the Court to settle that issue one way or the other before proceeding to the hearing of any other issue in the case on the merits. He argued that the learned trial Judge was right when he heard the motion touching on his competence and jurisdiction before entertaining the issue of contempt, although, same was not properly constituted as the Respondents were not served with the said contempt proceedings. He further submitted that the Learned trial Judge considered the arguments of both parties and came to the conclusion that he had no jurisdiction to dismiss the Respondent’s motion of 17th July, 2002 and set aside the order he made on the 8th November, 2004 dismissing the motion of 17th July, 2002 which in effect meant that the motion of 17th July, 2002 was still pending, challenging the competence of the Court to have entered the judgment against the Respondents. In view of this, the Respondents never disobeyed any order of the Court in this case. Assuming (but not conceding) that the Court has a right to hear a party who is challenging the order of the Court on the ground of lack of jurisdiction or where all the contemnor is asking for is to be heard in respect of matters of defence and that a person against whom a committal order has not been made or served cannot be a contemnor. He referred to the cases of Attorney General of Lagos State vs. Dosumu (1989) 3 N.W.L.R. Part 111 p. 552, FATB vs. Ezegbu (1992) 9 N.W.L.R. Part 263 p. 132, Mobil Oil Nig Ltd vs. Asam (1998) 8 N.W.L.R. Part 412 p. 129, Doma vs. Ogiri (1997) 1 N.W.L.R. Part 481 p. 322 and NDLEA vs. Okoro Odudu (1997) 3 N.W.L.R. Part 92 p. 221 and submitted that the Learned trial Judge was right in hearing the Motion of 30th March, 2005 which challenged the jurisdiction of Court to dismiss the Motion of 17th July, 2002 to the detriment of the contempt proceedings.

In the Appellant’s Reply Brief, it was argued that the Respondents’ preliminary objection bordering on the first issue was withdrawn and struck out on 4th June, 2007, and as such the Respondent’s Brief was not amended to exclude the struck off portion. He further contended that the Respondents cannot formulate any issue outside the Appellant’s issues except through a Cross-Appeal. He cited Adeyemi vs. Olakunri (1999) 73 L.R.C.N.3606 at 3609. He further referred to A.G. Federation vs. Guardian Newspaper Ltd (2001) F.W.L.R. Part 38 p. 1352 and Architects Registration Counsel of Nig. vs. Prof. M. A. Fassasi (2001) 1 Q.R.R. p. 24, (1987) 6 S.C. p. 8 and submitted that once a Court had already proceeded with a case and finally determined it, it would be too late for that Court to be called upon to determine whether it had jurisdiction to have decided the case as the Court would be functus officio at that stage. He further urged that the appeal be allowed.

It appears from the manner in which the first issue distilled for determination by the Respondents in their Brief was couched, that the competency of this appeal is being questioned; because, it was alleged that leave of the Court ought to have been obtained as prescribed by Section 242(1) of 1999 Constitution and Section 25(1) of the Court of Appeal Act.

However, as rightly observed by Learned Counsel for the Appellant in the Appellant’s Reply Brief, the Respondents, via their Counsel, namely, U.J. Uchegbu (Miss) on 14/5/08, withdrew the Notice of Preliminary Objection filed by them on 10/10/07, and, the same was struck out by this Court.

It is also worthy to note that on 11/2/09 when this appeal came up for hearing, and during the adoption of the Respondents’ Brief, their Counsel, Eno T. Offong Esq., did not intimate this Court of any preliminary objection raised by him. The Respondents’ Brief filed on 27/4/07 appears to have been filed before their struck out Notice of Preliminary Objection was filed. The natural event that should have followed the withdrawal of the Notice of Preliminary Objection, was, the amendment of the Respondent’s Brief to strike out issue No. 1 formulated by them.

Order 10 Rule (1) of the Court of Appeal Rules stipulates that a Respondent who wishes to raise a preliminary objection to the hearing of an appeal shall give three clear days of the said notice before the hearing, setting out the grounds of the objection and shall file such notice together with twenty copies thereof with the Registrar within the same time.

Rule 3 then says that if the Respondent fails to comply with this rule, the Court may refuse to entertain the objection or may make such order as it thinks fit.

What Rule (3) postulates is that failure to conform with the procedure laid down in Order 10 Rule (1) does not invalidate any Notice of Preliminary Objection incorporated in the Respondent’s Brief.

It was held in Lagga vs. Sahuna (2008) 16 N.W.L.R. Part 1114 p. 427 where the case of Agbaka vs. Amadi (1998) 11 N.W.L.R. Part 572 p. 16 at 25 was referred to, that the notice given in the Respondent’s Brief does not dispense with the need to file such notice but it does not deprive the Court of doing certain things like drawing the attention of the Appellant’s Counsel to the incompetent ground of appeal. So, failure to bring the notice in accordance with the rules does not render such notice ineffective. This underscores that it is a notice that must be filed or raised in a Respondent’s Brief. A notice can be given in the Respondent’s Brief. But a party filing it in the Brief, must ask the Court for leave to move the notice, before the oral hearing of the approval commences otherwise it will be deemed to have been waived and therefore abandoned. See also Omilani vs. Omisore (2007) 3 N.W.L.R. Part 1020 P. 177 where it was held that where a preliminary objection is incorporated in a Brief of Argument, leave of Court must be obtained to argue the same in an oral hearing of the relief prayed for. Failure to do so is an inference that the preliminary objection is abandoned and liable to struck out. The absence of specific application seeking leave of Court to move the preliminary objection raised by the Respondents presupposes that the same was abandoned and therefore struck out.

However, it was held in the case of Auto Import Export vs. Adebayo (2002) 18 N.W.L.R. Part 799 p. 554 per Iguh, J.S.C. at p. 580 para. D – H on the question whether preliminary objection to appeal can be raised in the Respondent’s Brief without filing any Notice of Motion, that the contention of Counsel that the Respondent’s preliminary objection is incompetent as it was not brought by way of Motion or Notice contrary to the provisions of Order 2 Rule 28(1) of the Supreme Court Rules which stipulates that every application to the Court shall be by notice of Motion supported by affidavit is clearly without merit, and, totally misconceived. It was further opined that a Notice of Preliminary pursuant to the provisions of Order 2 Rule 9 of the Supreme Court Rules may validly be raised to question the competence of an appeal in the Respondent’s Brief of Argument. It cannot be disputed that the object of the said Order 2 Rule 28(1) of the Supreme Court Rules is to give an Appellant before hearing of the appeal notice of any preliminary objection to the hearing of the appeal and the grounds thereof in order to enable him to be prepared to meet the objection at the hearing of the appeal. The rule is a safeguard against embarrassing an Appellant and taking him by surprise. This is exactly what the Respondents have done in the present appeal by raising their preliminary objection in their briefs of argument. See also Excel Plastic Ind. Ltd vs. PBN (2008) 11 N.W.L.R. Part 935 p.59.

However, in the present appeal, it ought to be observed that the Respondents did not caption their issue NO.1 nor was it argued as a preliminary objection. It was propounded as the first issue to be determined in the appeal itself, and having been so presented, one may easily accede that it did not arise from the grounds of appeal filed by the Appellant at the lower Court. Their Counsel simply adopted the Respondents’ Brief and prayed the Court to dismiss the appeal and affirm the ruling of the lower Court.

It is trite, that issues for determination must not be formulated in abstract, but must be tailored to the real issues in controversy in the case. See Okon vs. Ekanem(2002) 15 NWLR Part 789 p. 106. In Nya vs. Edem (2005) 4 NWLR Part 915 p. 345, where the cases of Abioye vs. Afolabi (1998) 4 NWLR Part 545 p. 296 and Onyali vs. Okpalen (2001) 1 NWLR Part 694 p. 282 were referred to, it was held that it is wrong and improper that a preliminary objection raised should be presented as an issue for determination by the Respondent. It was stressed in Onyali’s case that the presentation of preliminary objection as an issue by itself in the Respondent’s brief of argument was curiously untidy.

Nevertheless, this Court cannot shut its eyes to a fundamental issue of this grave nature that touches on the competency of the Notice of Appeal before us and to which the Appellant had ample knowledge and notice of, and, indeed filed a Reply Brief.

Ordinarily, the first issue presented by the respondents would have been ignored. The issue did not emanate from the grounds of appeal. See Eriniwingboro vs. Amayo (1994) 3 NWLR Part 332 p. 365. The objection raised by the Respondents, inspite of the non-compliance with the provision of the Rules of the Court referred to above, will be considered. The objection touched on the competence of this Court, as well, to proceed to hear the main appeal. It is our duty, in circumstances such as this, to first resolve the issue of incompetence of the appeal before proceeding to hear same if at all.

The main contention of the Respondents’ objection relates to the grounds of appeal themselves. It is submitted that grounds ‘C’ and ‘D’, in particular, involve questions of mixed law and fact making the acquisition of the leave of the Court a necessary pre-condition for their competence.

It is not in dispute that the Appellant did not obtain leave at either the lower Court or the Court of Appeal before filing this appeal. The question posed by the Respondent’s first issue is, whether leave of the High Court or Court of Appeal was required before this appeal was filed.

If this question is answered in the positive, it will seal the facts of this appeal. The appeal would have become incompetent and therefore not worthy of further consideration by this Court, while a negative answer will signify the Appellant’s appeal as being competent and worthy of further consideration. The failure to obtain leave of Court where necessary to file a particular ground of appeal upon which an issue is raised for resolution of a case, renders both such ground of appeal and the issue so formulated therefrom, incompetent. Where an appeal can only be lodged with the leave of the Court, it is the leave that confers jurisdiction on the Court, and, it is very vital and fundamental that leave must be obtained before an appeal is filed.

However, where many grounds of appeal are filed against an interlocutory decision, and, only one of the grounds is a ground of law alone, that ground is sufficient to sustain the appeal without the necessity of seeking for leave of Court.

By the provisions of section 242(1) of the Constitution of Federal Republic of Nigeria 1999, an appeal from a decision of the Federal High Court or a State High Court on any ground other than the grounds in section 241 of the Constitution shall be with the leave of the relevant High Court or the Court of Appeal. By section 241(1) (b) of the Constitution an appeal involving questions of law alone requires no leave of either the Court below or the Court of Appeal.

I will however reproduce the entire grounds filed by the Appellant in this appeal without their particulars. They read thus:

“(A) The Learned trial Judge erred in law to have entertained the matter when he was functus officio – Ononiwu vs. RCC Ltd (2002) 2 Q.R.R. 230 1995, 7 N.W.L.R. Part 402 at 217

(B) The Learned trial Judge erred in law when he ruled that the Defendant/Judgment Debtors were not served with the hearing notice for the dismissed notice dated 30th March, 2005.

(C) The Learned trial Judge erred in law when he failed to make reference to the death of the first Judgment Debtor/Respondent (the principal party) which was brought to his notice.

(D) The Learned trial Judge again erred in law in his abandonment of the contempt proceedings against the Judgment Debtor for a Motion on abuse of Court process.”

It is settled that to distinguish a ground of law from a ground of fact, what is required is to examine the grounds to see whether the grounds of appeal reveal a misunderstanding by the lower Court of law or a misapplication of the law to the facts already proved or admitted in which case it would be a question of law, or one that would require questioning the evaluation of facts by the lower Court before the application of the law, in which case, it would amount to question of mixed law and fact. See Hassan vs. Itanyi (2002) 8 NWLR Part 770 p. 581.

Therefore, in order to determine the nature of the ground of appeal, one must look closely at the main ground together with the particulars thereof to see whether it is a ground of law, fact or mixed law and fact. It is therefore, not enough for Counsel for the Appellant to brand a ground of appeal a ground of law to make it one. It is also settled law that a ground of appeal is the totality of the reasons why the decision complained of is considered wrong by the party appealing. On the other hand, a question of law or grounds of law can be said to have three meanings, to wit:

(a) a question the Court is bound to answer in accordance with a rule of law, the process of answering of which question the Court would exercise no discretion in whatever manner; it is a question predetermined and authoritatively answered by the law;

(b) the second meaning is as to what the law is; an appeal in which the question for argument and determination is what the true rule of law is on a certain matter which question usually arises out of the uncertainty of the law;

(c) the third meaning is in respect of those question which are committed to and answered by the authority which normally answers of law only; that is any question which is within the province of the Judge instead of a jury is a question of law, even

though in actual sense it is a question of fact. Within this meaning can be identified the interpretation of documents, which is often a question of fact, but is within the province of the Judge.

See Anoghalu vs. Oraelosi (1999) 13 NWLR (Part 634) 297.

A “question of fact” also does not have one meaning as it may mean:

i. a question which is not determined by a rule of law:

ii any question except the question as to what the law is: and

iii any question that is to be answered by the jury rather than the Judge, is a question of fact – See Anoghalu vs. Oraelosi (supra).

In determining whether a ground of appeal is of law or fact or mixed law and fact, the Court is to be guided by the following principles:

(a) where the Court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground is of mixed law and fact;

(b) a ground which challenges the findings of fact made by the trial Court or involves issues of law and fact can only be argued with the leave of the Appellant Court;

(c) where the evaluation of facts established by the trial Court before the law in respect thereof is applied is under attack or question, the grounds of appeal is one of mixed law and fact;

(d) where the evaluation of evidence tendered at the trial is exclusively questioned, it is a ground of fact, and;

(e) a ground of law arises where the ground of appeal shows that the Court of trial or Appellate Court misunderstood the law or misapplied the law to the proved or admitted facts.

See the case of Ugboaja vs. Akitoye – Sowemimo (2008) 16 NWLR Part 1113 p. 278 where Onnoghen, J.S.C.

Ground ‘C’, obviously, is questioning the evaluation of the facts supplied to the trial Court by the Appellant’s Counsel during his oral submission. In effect, he is contending that the Court did not consider all the facts presented before it because, had it considered the fact of the death of the 1st Defendant, it would have decided otherwise.

In relation to ground D, it seems the Appellant is agitated as to the procedure adopted by the trial Court in determining which process to be heard first, meaning that the learned trial Judge misapplied the procedural law in determining such processes, because according to his Counsel, a person who is in contempt of a subsisting order of the Court is not entitled to be granted Court’s discretion to enable him to continue with the breach. It certainly disclosed complaint of misdirection in the rules of procedure in hearing two competing processes, but then the particulars are directed towards the proof of evidence, it is therefore a ground of mixed law and fact.

I have perused grounds ‘C’ and ‘D’ in the light of the aforestated principles and I find that they indeed reveal such defects and in this vein, I am satisfied that they are incompetent, and thus ought to be struck out.

The argument of Learned Counsel for the Respondents that the appeal itself is incompetent as no leave of Court was sought and obtained before it was filed would have succeeded, had all the grounds of appeal were held to be incompetent, and, there is no competent ground to sustain it. It is trite that leave of Court will be required where such an appeal consists of grounds of fact or mixed law and facts, but this is not to say, the whole appeal will be struck out when there are grounds of law that can sustain it. Therefore, since, grounds A and B are grounds of law and do not require the leave of Court to be filed, they are valid grounds that would save and sustain this appeal. The appeal will thus be treated on the surviving grounds of appeal. Therefore, the Respondents’ preliminary objection couched as issue No.1 in their Brief is upheld in part.

Since grounds ‘C’ and ‘D’ were found to be incompetent and struck out, the issues raised therefrom are also struck out by this Court. It follows, therefore, that only two surviving grounds of appeal are in this appeal, and as such only two issues, strictly, will emanate from them.

In this regard, the Appellant’s issue No. 1 and the Respondents’ issue No. 2 will be treated together and in like manner, the Appellant’s issue No. 2 and the Respondents’ issue No. 3 which are the same in con shall be considered together.

With respect to issue No. 1 which is, whether the Learned trial Judge lacked the capacity and jurisdiction to entertain the Motion dated 30th March, 2005, which purportedly sought for extension of time within which to apply to set aside their dismissed motion, which dismissed motion hitherto attempted to set aside the judgment of 22nd May, 2002/ it is imperative to emphasize that the said order of the trial Court made on the 8th November, 2004 dismissing the Respondents’ Motion on Notice filed on 17/7/02 was made for want of diligent prosecution. The Motion was dismissed as a result of the Respondents and their Counsel’s failure to appear in the proceedings and prosecute their matter. It was not dismissed after arguments had been tendered by both parties before the Court and duly considered by the Court. It was dismissed in the absence of the parties who filed it, therefore, the order was not made on the merits. It is well established that it is not every time a Court delivers a judgment, ruling or makes an order that it is functus officio and resort ought to be heard to the appeal process. The Court or another Court of co-ordinate jurisdiction is competent to set aside the decision if the judgment or order was made without jurisdiction or is authorized by statute to set aside its own decision. See Fada Naomi (2002) 4 NWLR Part 757 p. 318 and Yakubu vs. Governor of Kogi State (1997) 7 NWLR Part 511 p. 66 at 87.

A judgment or order on the merits is one obtained where the case or issue had been argued and the Court has decided which party is in the right.

It follows that once a Court has decided an issue in a particular way, the Court becomes functus officio in respect of that issue and cannot reach a different decision on the issue in the same case. See A.I.C. Ltd vs. Nigeria National Petroleum Corporation (2005) 1 NWLR Part 937 p. 563.

In the same vein, it ought to be stated that if a Court makes an order which it has no jurisdiction to make, it has jurisdiction to rescind the order so as to restore the status quo. In other words, if a Court makes an order which abinitio it has no jurisdiction to make, the order so made is a nullity and it is within the jurisdiction of that same Court that made the order to set it aside. A Court is said to be of competent jurisdiction with regard to a suit or other proceeding when it has power to hear or determine it or exercise any judicial power therein.

There is a distinction between an order or judgment which a Court is not competent to make and an order which, even if erroneous in law or in fact, is within the Court’s competence, they are;

(a) where there is no jurisdiction, the proceedings are void and the order made by the Court is a nullity which it is competent to set aside;

(b) where a Court of competent jurisdiction makes an erroneous order, it is an erroneous decision which can only be set aside on appeal.

In the instant case, it was alleged that the Respondents, who were the Defendants/Judgment Debtors/Applicants were not aware that the case had been re-assigned to S. M. Anjor J,’s Court. They, also, alleged that no hearing notices were served on them to enable them appear on the hearing date.

n is so glaring on the record of appeal before us that the first time the said Respondents’ Motion on Notice filed on 17/7/02 came up before S.M. Anjor J., was on the 29th September, 2004 and from which it was adjourned to the 11th October, 2004 for mention. The Court then ordered that hearing notice be served on the Defendants/Applicants.

Unfortunately, and for some undisclosed reasons on the record, the Court presided over by S. M. Anjor J, did not sit on the said 11/10/2004, the matter was then further adjourned to the 8th November, 2004 for mention by one E. O. Etim, who was described as Clerk of Court. The motion was never adjourned for hearing but for mention. What the Court should have done on the date the Motion was fixed for mention was to have ensured that all the parties had been properly notified of the pendency of the motion, before it could then be fixed for hearing. It is only on the date a matter is fixed for hearing that it can be struck out in the absence of the Plaintiff or Applicant if the Court is satisfied that the party had been served with hearing notice informing him of the said date.

The record also reveals that it was on the said 8/11/04 the motion was fixed for mention that learned Counsel for the Appellant, Dr. Ukam applied that the said motion be dismissed. There is no indication whatsoever on the record that the learned trial Judge took any step to verify or ascertain if the Defendant and/or their Counsel had been served with any hearing notice informing them that the matter had been transferred to his Court, and, that the said motion had been fixed for either mention or hearing as the case may be. No investigation of any sort was made by the learned trial Judge either from the bailiff of the Court or some other officers of the Court before he proceeded to dismissing the said motion with N2000 costs against the Applicants now the Respondents in this appeal. It was not demonstrated whether or not the Defendants were served with hearing notices. In Ogundoyin vs. Adeyemi (2001) 13 NWLR Part 730 p. 403, the Supreme Court clearly held that where a party fails to appear in Court, the Court owes it as a duty to examine its records to determine whether the party was served with hearing notice but deliberately absented himself including his Counsel from Court and did not take opportunity of being heard. When the appellants were not heard before their appeal was dismissed they were not by any stretch of imagination given a hearing let alone fair hearing by the Court below. It is indeed trite law that a party who will be affected by the result of a judicial enquiry must be given opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal.

It is an established principle of law that service of a Writ of Summons or process is a condition precedent to the exercise of jurisdiction by the Court out of whose Registry, the writ or process was issued, and, under the Nigerian adversary system of jurisprudence, to hear a case without one of the parties having been served with the necessary process, except in a proper ex parte proceedings would render the trial, a nullity as service of the Court’s processes are basic and indispensable to any effective adjudication. See Auto Import Export vs. Adebayo (2002) 18 NWLR Part 799 p. 554.

Thus, where parties are repeatedly absent in Court, the only procedure to take is to issue a hearing notice. Hearing notice is the Court’s process by which a party to the proceedings is notified of the date the matter has been fixed in Court when he is not otherwise aware of such date. It is the responsibility of the Court after it is seized of a case to notify the defendant of any date fixed for the hearing of the matter or any other related matter. If the Court shuts its eyes on that exercise or derelicts on such duty, then the Court is committing a blunder which shall be reversed ex debito justitiae by an appellate Court. In other words, a trial Court cannot begin to hear a matter before it unless it is abundantly sure that the defendant is aware that the matter against him is fixed for hearing on that date, where the defendant is absent from the Court, the Court must be satisfied through evidence of an affidavit of service that the defendant has properly and satisfactorily been served with the hearing notice in accordance with the law. See So Mai Sonka Co. Nig. Ltd vs. Adzege (2001) 9 NWLR Part 718 p. 312.

Furthermore, on the necessity for fresh hearing notice to be issued when original hearing date is aborted by unforeseen circumstances, Muntaka-Coomassie J.C.A., (as he then was) said in Mankanu vs. Salman (2005) 4 NWLR Part 915 p. 270 at 292 – 293 thus:

“I agreed that both parties were present in Court when the learned trial Judge fixed a date for defence. However, that date fell on certain crisis in the state which necessitated the Court not to sit on that date. When the lower Court ultimately fixed another date for defence, the appellant should have been informed of the new date….. The lower Court must endeavour to order for fresh hearing notices to be re-issued on them. Agena vs Katseen (1998) 3 NWLR Part 543 p. 560 at 565 – 566. Since the lower Court failed to make sure that the appellants were served, there is breach of fair hearing against the appellants and that, of course, a miscarriage of justice hard occasioned and the order is null and void and of no legal effect whatsoever”. See also Scott – Emakpo vs. Ehiwario (2004) 13 NWLR Part 889 p. 105.”

It is trite that non-service of process in proceedings other than in ex parte proceedings is fundamental to the assumption of jurisdiction. It is a fundamental vice which renders null and void an order made against the party who should have been served, as the idea, that an order can validly be made against a party who has no notification of the action against him, is one that is clearly undesirable and indeed, unacceptable in the Nigerian judicial system.

Failure to effect service of process on the opposing party where service is required in law connotes that a condition precedent to the exercise of jurisdiction was not fulfilled and in such a situation the party not served is entitled ex’ debito justitiae to have it set aside by the Court which made it. See Auto Import Export vs. Adebayo (supra). It is highly very necessary that parties must be notified of the hearing date and its importance or fundamental nature cannot be over-emphasized because failure to serve such a notice on the parties renders the proceedings at the hearing null and void as the Court lacks jurisdiction. See Agwurangbo vs. Nakande (2000) 9 NWLR Part 672 p. 341. In such circumstances the Court cannot become functus officio. A Judge is said to be functus officio when he had given a judgment or made an order on the merits.

It is evident on the record of appeal that the order made by S.M. Anjor J., on 8/11/04 was made without jurisdiction for want of service of hearing notice. That order was a nullity and it was within the jurisdiction of S. M. Anjor J., who made the order to set it aside.

A Court has an inherent power to set aside its own order or judgment which is a complete nullity like the order made by the trial Court on 8/11/04. Where, therefore, it is shown that there was a fundamental defect which goes to the root of jurisdiction or competence of the Court, such Court has inherent jurisdiction to regard the order made as a nullity and to set it aside upon application. See Auto Import Export vs. Adebayo (supra).

It, therefore, follows that having made the order dismissing the Respondents’ Motion filed on 17/7/02 without jurisdiction and for want of service of hearing notice, which said order was invalid, null and void, the trial Court had jurisdiction on the 26th April, 2006 when it entertained the Respondents’ Motion on Notice filed on 30/3/05 and granted the prayers sought therein including setting aside its said order dismissing the Respondents’ Motion on Notice to set aside the trial Court’s judgment delivered on 22/5/2002. The learned trial Judge, having not become functus officio was, therefore, right in granting the prayers sought by the Respondents.

Accordingly, issues 1 and 2 propounded by the Appellant are hereby resolved in favour of the Respondents. This appeal is bereft of merits and is bound to fail. It is hereby dismissed with N10,000 cost against the Appellant in favour of each of the Respondents.

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Other Citations: (2009)LCN/3490(CA)