Dr. Joseph Adeyemi – Bero V. Mr. Mobolaji Babatunde Omotosho & Ors (2008)
LawGlobal-Hub Lead Judgment Report
HUSSEIN MUKHTAR, J.C.A
The appellant who was the claimant in the court below sought for and obtained an order for recovery of possession of a piece of land situate at Ogombo town opposite Asoko village in Eti-Osa Local Government Area of Lagos State (hereinafter referred to as “the land”).
The suit filed by the claimant was initiated by an originating summons against ”unknown persons,” After satisfying the lower court that the unknown persons had been duly served with the initiating and other relevant court processes, the court indulged the appellant’s counsel to argue the case for the claimants in default of the defendants’ appearance, after which it adjourned the matter for judgment. On the 9th May 2003 the lower court (Coram Candide-Johnson, J) delivered its judgment wherein it gave possession of the land to the appellant, and the judgment was executed about a month thereafter by giving possession of the land to the claimant/appellant (hereinafter referred to as “the appellant”) between the 9th and 10th June 2003.
Subsequently the respondents surfaced and successfully applied for joinder as defendants by their respective motions dated 3rd December 2003 and 18th December 2003. They were joined on the 25th January 2005 as defendants.
A motion on notice was later filed by the defendants/respondents (hereinafter referred to as “the respondents”) dated 2nd February 2005 seeking for the following reliefs:
I. “An order staying execution or further execution of the judgment of the Honourable Court delivered on the gill of May 2003 against the defendants pending the hearing and determination of this application.
II. An order extending the time within which the defendants may apply to set aside the judgment delivered by the court on the 9th of May 2003 against the defendants.
III. An order setting aside the judgment delivered by the court on the 9th of May 2003 against the defendants.
IV. An order restoring the defendants back to possession and occupation of the land being and situate along Lagos/Epe
Expressway, Ogombo village in the Eti-Osa Local Government Area of Lagos State,”
The above reliefs were sought for on the following grounds;
a. “That the claimant did not make a full disclosure of the material facts in this case before obtaining the judgment.
b. That there was no time that any process of court was pasted on the land situate and lying along Lagos/Epe Expressway, Ogombo village in the Eti-Osa Local Government Area of Lagos State, the land in dispute.
c. That there was no time any writ of summons or originating summons was pasted on the aforesaid land indicating the existence of this suit.
d. That the judgment was a default judgment given without the necessary consideration of the merits of the case,”
The motion was heard and determined by Abiru, J a brother judge of the same court. In his ruling delivered on the 25th May 2005, Abiru, J held, inter alia, thus:
I. “The judgment delivered by the court on the 9th of May 2003 in this suit was a nullity and it is hereby set aside.
II. The defendants are entitled to restoration of possession of the land in dispute in this suit situate along Lagos/Epe Expressway, Ogombo village in Eti-Osa Local Government Area of Lagos and the claimant is directed to relinquish possession of the land to them.
III. The defendants are entitled to the cost of this application assessed at N=4,000.00.”
Counsel on both sides raised a single but similar issue for determination. The issue raised by the appellant reads thus:
“Whether a Judge of a High Court can re-open a suit in which final judgment bas been delivered by another High Court Judge and the judgment executed and … (sic) …reappraise the factual evidence and set aside the final judgment.”
The respondents’ similar issue raised for determination reads thus:
“Whether the judgment of Honourable Justice Candide Johnson dated 9th May 2003 is not a nullity and as such liable to be set aside and therefore was validly set aside by Honourable Justice H. A. O. Abiru.”
Issues for determination must be related to the grounds of appeal. The issue raised by the appellant’s counsel is adopted for its aptness to both grounds of appeal. The appellant’s counsel in his submission contended that the judgment of Candide-Johnson, J delivered on the 9lh May 2003 had finally disposed of the rights of the parties in the suit and that it was not open for Abiru, J a Judge of co-ordinate jurisdiction, to re-examine the evidence in that judgment and find in contrast with the decision of Candide- Johnson, J, that the respondents had not been duly served and further proceed to set it aside. He further submitted that Abiru, J was in error to have substituted his own views for those of Candide-Johnson, J and thereby came to a decision different from that of his learned brother on the issue of service. He relied on the case of AKINLOYE VS EYIOLA (1968) N.M.L.R. 92 at 95, and the Supreme Court decision in VICTOR WOLUCHEM VS CHIEF Gum (1981) 5 S.C. 291 at 326-330.
The appellant’s counsel submitted that the judgment of Candide- Johnson, J was given under the undefended list and therefore a judgment on the merit. The judgment was delivered in default of the defendants’ appearance. It was therefore not ‘undefended’ as the learned counsel for the appellant erroneously tagged it. Moreover, the nature of the judgment covered by the issue for determination is its finality. It is pertinent that arguments of counsel must be limited to the issue raised for determination properly distilled from the grounds of appeal.
The grounds of appeal are reproduced hereunder, without their particulars for the avoidance of doubt:
“1. The learned trial judge erred in law when he failed to take into account that the decision of the Hon. Justice Candide-Johnson in suit No M/26/03 on 9th May 2003 was a final decision and therefore could only be set aside by Hon Justice Candide-Johnson himself for good reason or on appeal to a higher court
- The learned erred in law when he sought legal justification for his resolve to set aside the judgment of a court of coordinate jurisdiction in the cases of Sken consult Nig Ltd vs. Ukey (1981) 1 S.C 6; Sachia Vs. Kwande Local Government Council (1990) 5 NWLR (Pt 152) 548 and Onagoruwa Vs. Inspector General of police (1991) 5 NWLR (Pt 193) 593 when these cases were all distinguishable from the case before him.”
The only issue raised was that the judgment entered on the 9th May 2003 was final. There was no question whether the judgment of Candide-Johnson, J entered on the 9th May 2003 was undefended or default and it is accordingly discountenanced.
The relevant issue to be decided in this appeal is whether the judgment of Candide-Johnson, J delivered on the 9th May 2003 is a final judgment and if so whether Abiru, J of co-ordinate jurisdiction could properly set it aside.
The appellant’s counsel further submitted that Justice Candide-Johnson had made a finding of fact based on the evidence before him that there was proper service of the originating process and holding otherwise as Abiru, J did in his ruling of 25th May 2005 tantamount to reversing the finding of fact in the earlier decision and wrongly reached the conclusion that the judgment of Candide-Johnson was a nullity.
Unfortunately the learned counsel for the appellant made wrong citations to majority of the cases cited in his brief while other cases have no citations at all thereby making it next to impossible for the court to access most of those authorities.
It was submitted for the appellants that the issue whether the judgment of Candide-Johnson could be set aside could only be considered by the same judge since he was available to do that by himself but that another judge of co-ordinate jurisdiction cannot set it aside. He distinguished the facts and circumstances of the present case from those in SKENCONSULT NIG LTD VS UKEY (supra). Finally, the appellant’s counsel urged the court to allow the appeal and set aside the ruling of the court below delivered on 25th May 2005.
The respondent’s counsel however, submitted that Abiru, J was right in law to have considered the issue of valid service of the originating summons and set aside the null judgment of Candide-Johnson, J by relying on the Supreme Court decision in the case of MARK VS EKE (supra) at pp 16 – 17 where the Supreme Court per Musdapher, JSC observed that:
“If the judgment is a nullity the court which made it can set it aside on a motion suo motu or on an application by any party affected by it. See LAW ANI ALADEGBEMI VS JOHN FASANMADE (1988) 3 NWLR (pt. 129) VICTOR ROSSEK AND OTHER VS A.C.S. LTD AND ORS. (1993) 8 NWLR (pt 312) 382; OKOLI OJIAKO & ORS VS ONWOMA OGUEZE & ORS (1962) 1 All NLR 58. The law is settled that any court of record including the Supreme Court, see OLABANJI VS ODOFIN (1996) 2 SCNJ 242 at 247, has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the court. See SKENCONSULT (NIG) LTD VS UKEY (supra) A.C.B. PLC VS LOSADA (NIG) LTD (1995) 7 SCNJ 158 at 168. Such a judgment is a nullity. A person affected by it is therefore entitled ex debito justitiae to have it set aside.
The court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal. See ADEIGBE VS KUSIMO (1965) NMLR 284; EZEOKAFOR VS EZEILO (1999) 6 S.C. (pt II) 1, (1999) 6 SCNJ 209 at 225.
This is common sense that if a court makes an order, which it has no jurisdiction or competence to make, it has the jurisdiction to rescind the order so as to restore the status quo.
See AKINBOBOLA VS PLISON FISKO (1991) 1 NWLR (pt. 270) 276. A judgment or order which is a nullity owing to failure to comply with an essential provision, such as, service of process, can be set aside by the court which gave it or made the order.”
The above case is however distinguishable from the instant one. In MARK VS EKE the suit was brought under the undefended list and the service of the initiating process was to be effected by substituted means by pasting or serving it on an adult inmate at defendants’ last known address.
After the service the defendants neither appeared nor filed any notice of intention to defend the action. It was after execution that the defendants appeared and filed a motion seeking to set aside the judgment and execution thereof on ground that they were never served with the writ of summons.
The affidavit supporting the application showed that the defendants were not served and the plaintiffs claim was denied. The plaintiffs filed a counter affidavit showing that the defendants were served and a copy of the affidavit of service was annexed thereto without resolving the conflict with regard to service of the writ, the learned trial Judge dismissed the defendants application holding that the defendants were served and that the court had no power to set aside its judgment delivered under the undefended list on the merits.
The defendant’s appeal to the Court of Appeal was dismissed and the trial court’s judgment affirmed. On further appeal the Supreme Court it was held thus:
“In view of the above, both the court below and the trial court were in error to have held that the trial court had no power to set aside the judgment because the judgment in this matter was a judgment obtained under the undefended list. Where as in this case the aggrieved defendant complains of non-service of the process, he is raising a fundamental issue, which goes to the jurisdiction and the competence of the court to enter the judgment. In such a case, where the defendant proves non-service on him, the whole proceedings become a nullity and the trial court has the jurisdiction to set it aside. It needs to be emphasized, that it is now settled law that the failure to serve process, where the service of process is required such as in this case, is a failure which goes to the root of the case see CRAIG VS KANSEEN (1943) KB 256 at 262.It is the service of the process of the court on the defendant that confers on the court the competence and the jurisdiction to adjudicate on the matter.
It is clear that due service of the process of the court is a condition precedent to the hearing of the suit. Therefore if there is a failure to serve the process, where the service of the process is required, the person affected by the order, but not served with process, is, as mentioned above entitled ex debito justitiae to have the order set aside as a nullity. See MBADINUJU VS EZUKA (1994) 8 NWLR (pt. 364) 5.”
he Apex Court further stressed the critical importance of service of initiating process as an essential and indispensable condition for the court to assume jurisdiction on the matter. Failure to comply with that crucial condition renders the entire proceedings and the judgment entered and all subsequent proceedings absolutely null and void. However, the major difference between MARK VS EKE and the present case is that the decision of Candide-Johnson, J on the issue of service, which is appellable and which led to entering a judgment in default of appearance of the defendants, was reviewed and effectively set aside by Abiru, J of coordinate jurisdiction.
Candide-Johnson, J made an interlocutory decision on service of the initiating and other court processes, which led him to enter the final judgment. However, Abiru, J took a fundamentally different decision on the issue of service, which led him to setting aside the judgment of Candide-Johnson.
There is no doubt that the judgment entered on the 9th May 2003 was a final one having disposed the matter and leaving nothing more to adjudicate upon. My learned brother R. D. Muhammad, JCA in the case of AFRIC MINING CO. LTD VS N. I. D. B. LTD (2000) 2 N.W.L.R. (pt 646) 618 at 625 paras A-B observed thus;
“As I have stated at the beginning of this judgment, these proceedings were initiated at the court below with a motion ex parte. It was after the motion ex parte was filed that the respondent applied for the issuance of an originating summons.
No motion on notice was ever filed. The originating summons applied for was never issued. It could be seen that when the motion ex parte was filed, there was no substantive suit pending. When the ex parte motion was granted there was no substantive suit pending. There was no motion on notice pending. The order made ex parte was therefore a final order because it disposed of the matter.”
However, the important point here is whether Abiru, J could appropriately change the decision of Candide-Johnson on the issue of service of the writ of summons and make a completely contrary decision which ultimately led to setting aside the judgment entered on the 9th May 2003 by Candide-Johnson, J. In fact the setting aside of the judgment by Abiru, J was premised on the issue of service of the originating process.
The power of court to set aside its own decision is exercisable when such decision is a nullity. In the instant case Abiru, J simply reversed the judgment entered by Candide-Johnson, J on the issue of service of the writ of summons, which tantamount to sitting on appeal over the earlier decision, made by another judgment of concurrent jurisdiction. In other words, the ruling of Abiru, J delivered on the 25th May 2005 had effectively upturned the earlier judgment of the same court delivered on the 9th May 2003. The power of a court to set aside its own decision in appropriate cases does not extend to reviewing such decision. That is the function and exclusive preserve of an appellate court.
It is important to get down to the real nitty-gritty difference between the initial proceedings conducted by Candide-Johnson, J and the subsequent proceedings of Abiru, J. While in the former the court found that the defendants were served with the initiating processes and therefore assumed jurisdiction to enter a final judgment in default of the defendants’ appearance, in the subsequent proceedings, the lower court held that there was no service on the defendants and therefore set aside the judgment entered earlier on 9th May 2003 on ground of lack of jurisdiction. One, however, wonders where the same learned trial judge got jurisdiction or powers to make a counter order for possession of the property to the defendants. Where a court of law lacks jurisdiction to entertain a matter, it equally lacks the power to review its earlier orders for possession, not to talk of going ahead to make new and contrary executory orders. It could, at best, only set aside its null judgment and/or vacate the orders made by it in the course of the null proceedings. The court below had precisely and unequivocally found that there was proper service on the defendants after considering the proof of service in the court’s record and in its judgment delivered on the 9th May 2003 held thus:
“The court’s record show that the defendants were duly served twice by pasting by the High Court bailiff Akin Gbajabiamila on the 5th March 2003 and 11th March 2003. There is proof of service dated 7th March 2003 and 14th March 2003 by the said court bailiff to which are annexed photographic evidence in further proof of the double service effected. I am satisfied and hold that the defendants being unknown and not being defendants who are named have been properly served in accordance with … (sic) … order 59 rule 4 of the 1994 High Court Rules … ” (emphasis supplied, see page 301 of the record). On the contrary the court per Abiru, J in the ruling delivered on the 25th May 2005 held inter alia, thus”
“There was no evidence that on the floor within the land in dispute. The service was not in compliance with the provisions of order 59 rule 4 (2) and it was improper. This was the service relied on by the court in proceeding with the substantive hearing of the originating summons in the absence of the defendants and the judgment was based on it. It is elementary that a judgment based on such service was a nullity because the jurisdiction of the court to entertain the matter was not ignited.”
It is very glaring from the above two inconsistent decisions of the court below that the latter was a review of the former. The power to review any decision of the court below is the exclusive preserve of an appellate court. The court has no power to sit on appeal over its own decision as was done in this case. The learned trial judges of the same court must stand shoulder to shoulder by complimenting each other in their onerous duty of adjudication and not to be at ridiculous war by re-opening and reviewing an earlier decision of their learned brothers not only of coordinate jurisdiction but the same court for that matter. It behoves the latter judge to exercise utmost caution not to over step his limited power in respect of earlier decisions made by the same court. The Supreme Court in N. I. M. BANK. LTD VS UNION BANK NIG LTD (2004) 4 S.C. (pt 1) 143 at 152 per Pats-Acholonu, JSC (of blessed memory) observed thus:
“It is I believe inelegant and a matter that would go against the grain of our procedural law for courts of coordinate jurisdiction instead of endeavouring to shore up the jurisdiction of each other engage in a form of unsavoury competition. They ought necessarily to avoid a situation where the court by its being less cautious exposes itself by the nature of the order it makes to ridicule and the majesty and aura of its pronouncements are either compromised or treated with ignominy as a non issue by the confused parties and I dare say by the common citizenry.”
Although final judgment obtained by default of appearance of the defendants may in appropriate circumstances, be re-opened and possibly set aside by the same court that delivered it, a judge cannot sit on appeal over the decision of another judge of coordinate jurisdiction. In the present appeal the second judge reviewed the decision of the first in respect of service of the initiating processes, and to add more insult to injury went further to give a contrary order for possession. I must say, without hesitation, that it was a belittling and ridiculous act that was unheard of.
The power of a court of law to set aside its own default judgment is exercisable where the judgment is a nullity for reasons bordering on jurisdiction or competence of the court such as non service of the initiating process or some other fundamental defect that goes to the issue of jurisdiction see MARK VS EKE (supra) at pp. 16-18, In the instant appeal the court having found per Candide-Johnson, J on the 9th May 2003 that the defendants were duly served, it was no longer open for the same court to turn around in its later ruling delivered on the 25th May 2005 per Abiru, J to hold otherwise and use that subsequent ruling to set aside the judgment.. This brings me to the obvious resolution of the singular issue for determination in favour of the appellants to the extent that the court below wrongly re-opened and reviewed and set aside the judgment of the same court in its ruling delivered on the 25th May 2005. Ground 2 of the appeal accordingly succeeds and the appeal is accordingly allowed in part.
The ruling of the court below delivered by Abiru, J being null and void is hereby set aside. The judgment of the lower court entered on the 9th May 2003 per Candide-Johnson, J remains valid and subsisting until same is duly set aside. Costs shall be paid to the appellant assessed at N=30,000.00
Other Citations: (2008)LCN/2911(CA)
