Lagos State Development Property Corporation V. Chief J. O. Adeyemi-bero & Anor. (2004)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In the High Court of Lagos State, in the Lagos Judicial Division, sitting at Lagos, the plaintiff by an action commenced by originating summons which was subsequently amended sought the following reliefs:

“1. A declaration that under and by virtue of Decree No. 21 of 1996 the judgment delivered by His Lordship, Honourable Juctice S.O. Ilori in suit No. M/415/95 between Chief J.O. Adeyemi-Bero and the Military Administrator & 2 Ors. in which judgment the court transferred interest in the properties to Chief J. O. Bero, is null and void and of no effect whatsoever.

2. A declaration that under and by virtue of Decree No. 21 of 1996, the provisions of Decree No. 54 of 1994 are longer applicable to the properties known as:

(a) Plot 177 Victoria Island, Lagos (also known as Block B Eko Court Complex).

(b) No. 25 Cooper Road, Ikoyi (both hereinafter referred to as “the properties” and that the ownership status of the properties remains as it was prior to the promulgation of Decree 54 of 1994 by the Federal Military Government.

3. A declaration that the provisions of the determination contain interests in Land Edict No.3 of 1976 which vested the properties in the plaintiff and Lagos State Notices No.9 and 23 of 1976 are still valid and subsisting.
4. A declaration that the effect of Decree No.21 of 1996 on Decree No. 54 of 1993 is that the properties still remain vested in the plaintiff under the Lagos State Notices No.9 and 23 of 1976 respectively.
5. An order of perpetual injunction restraining the first defendant, his servants, agents, privies etc., whosoever or whatsoever from dealing with the property in any manner or form or dealing with any of the tenants residents in any of the properties.
6. An order of perpetual injunction restraining the first defendant through his agents, privies or anyone deriving title under him from exercising or purporting to exercise any right or shape in respect of the properties aforesaid.
7. An order of perpetual injunction restraining the Registrar of Titles either by his agents, servants, privies or anybody whatever and whosoever claiming interest with them from effecting any change in the ownership of the property as vested in 1976.
8. Further and other reliefs.
9. That provisions be made for costs of this application.”

The originating summons is supported by an affidavit and a further and better affidavit. Two documents, the judgment of Ilori, J., and a copy of Decree No.21 of 1996, were exhibited to the affidavit in support of the originating summons. It is exhibited to the further and better-affidavit a certified true copy of a certificate of occupancy. On the other hand, the first defendant deposed to a counter as well as further counter-affidavit. The learned trial Judge, after reviewing the evidence as well as the submissions of learned counsel for the parties, particularly the defence, concluded as follows –

“It is my judgment that the judgment in suit No. M/415/95 operates as an estoppel per rem judicata to prevent the plaintiff in this case from making the downs as contained in legs 2, 3, and 4 of the amended originating summons dated 2nd July, 1998.

The plaintiff is estopped from making those claims.

Claims 5, 6 and 7 in the amended originating summons are ancillary claims which arise from the substantive claims.

A court cannot adjudicate over ancillary claims if it has no jurisdiction to entertain the main claim and if the ancillary claim inevitably involves a discussion of the main claim. By the same token, an accessory claim can only be determined by the court with jurisdiction to decide the principal claim. See the case of Tukur v. Govt. of Gongola State (1989) 1 NWLR (Pt. 117) page 517. Therefore the 5th, 6th and 7th legs of claim have no merit whatsoever.

In the result, the originating summons lacks merit. It is accordingly dismissed.

Costs assessed at N2,000.00 is awarded in favour of first defendant against the plaintiff only.”

The plaintiff was unhappy with the decision and being dissatisfied and aggrieved has appealed to this court on a notice of appeal carrying only one ground of appeal. Subsequently an amended notice of appeal containing 3 grounds of appeal was filed. Pursuant to the provisions of Court of Appeal Rules, briefs of argument were consequently settled. In accordance with the provisions of Order 6 rules 2, 3 and 4 of the Court of Appeal Rules they exchanged briefs, which were settled as appellant’s, respondent’s and appellant’s reply briefs of argument. Issues were framed in both briefs of argument. The issues identified as calling for determination in the appellant’s brief are three and are as follows:

“2.1 Whether the learned trial Judge was right to hold that the lower court did not possess the jurisdiction, inherent or otherwise to grant the plaintiff/appellant’s declaratory relief that the judgment of S.O. Ilori, J., in suit No.M/415/95 is null and void, on the sole ground that to exercise such jurisdiction would be tantamount to sitting on appeal over the judgment of a court of co-ordinate jurisdiction, since it would necessarily involve making a pronouncement on the said judgment?.

2.2. Whether the learned trial Judge was right in his conclusion that the issue raised in suit No. M/415/95 and those raised in the present suit are one and the same; and was therefore accordingly right in upholding the 1st respondent’s plea that reliefs 2,3 and 4 claimed by appellant were res judicata?.

2.3 Whether the learned trial Judge was right to hold that the present suit was res judicata when the judgment in suit No. M/415/95, the foundation of this res judicata was null and void by, virtue of Decree No.21 of 1996?.”

On the other hand, three issues were also formulated in the respondent’s brief as ca11ingfor resolution in this appeal. They read as follows:

“(1) Whether or not the learned trial Judge was wrong to have refused to review a judgment of a court of coordinate jurisdiction which is final, valid and subsisting?; and

(2) Whether or not the learned trial Judge was wrong in holding that the parties, issues and subject matter in suit No. M/415/95 and this case on appeal are the same thereby bringing into operation the doctrine of res judicata?.

(3) Whether or not Hon. Juctice Ilori’s decision in suit No. M/415/95 which was final as between the parties could not operate as res judicata because of Decree No.21 of 1996?.”

I hereby carefully examined the two formulations and am firmly of the view that, apart from the phrasing, they are very much similar. I think, however, that the only issue calling for determination in the con of the first issues in the two formulations is that whether the trial court could correct its earlier decision in the light of the new enactment.

Before I proceed further with the consideration of the issues as framed by me I propose to state the facts of the case albeit succinctly. The first respondent was a former Permanent Secretary who had owned three landed properties at Plot 177, Victoria Island, 25, Cooper Road, Ikoyi and 1, Obanikoro Road, Ikoyi, Lagos. The first respondent was indicted and investigated by an investigating panel. Consequent upon his being found liable the property were forfeited to the Lagos State by dint of The Determination of Interests in State Lands (No.1) Order LSLN 9 of 1976 made pursuance of section 1 of The Determination of Certain Interest in Land Edict No.3 of 1976. Thereafter Lagos State Government vested the forfeited property in its Lagos State Development and Property Corporation.

The Federal Government promulgated the Forfeiture of Assets (Release of Certain Properties) Decree No.54 of 1993 with a commencement date of 23rd August, 1993. Several property, forfeited to the Federal as well as State Governments, by section 1 thereof as identified in the second column of the Schedule were released to the person set out in the first column of the same schedule. The first respondent was second on the schedule with the corresponding property of Plot 177, Victoria Island, 25, Cooper Road, Ikoyi and 1, Obanikoro Road, Ikoyi, Lagos.

On promulgation of the Decree the first respondent naturally demanded for the return of those properties from Lagos State Government in an application to the Military Administrator of the State. Upon this written request Lagos State Government released the property at No.1 Obanikoro Road, Ikoyi but refused to surrender the other two property. Whereupon the first respondent instituted an action, suit No. M/415/95 against the Military Administrator of Lagos State, Attorney-General of Lagos State and the Registrar of Titles by way of originating summons filed on 7th July, 1995 claiming for a declaration whether under or by virtue of the Decree No.54 of 1993, the two property, had not reverted to and are vested in him as owner.

Ron. Juctice Ilori delivered judgment in the suit on 11th day of June, 1996 and answered the question positively, thereby granting a declaration to the effect that the property reverted to the first respondent by virtue of Decree No.54 of 1993. Subsequent to the delivery of the judgment precisely on the 3rd day of July, 1996, the Federal Military Government promulgated the Forfeiture of Assets (Release of Certain Forfeited Properties, etc) (Amendment) Decree No.21 of 1996. Decree No.21 of 1996 was a piece of a retroactive legislation with a commencement date of 6th June, 1995 which was barely a month before the institution of the action in suit No. M/415/95. This enactment, Decree No. 21 of 1996, deleted Item 2 of the Decree No. 54 of 1994. Item 2 contain the name and corresponding property of the first respondent herein.

It is common ground that a court cannot sit on appeal over its own judgment nor review the judgment of a court of co-ordinate jurisdiction which proposition are supported by a long line of authorities: Chief Waghoreghor & Others v. Aghenghen (1974) 1 SC 1, 5 – 6; Akporue & Anor. v. Okei & Ors. (1973) 12 SC 137, 1973 NSCC (VoI.8) 649, 654; Koden v. Shidon (1998) 10 NWLR (Pt. 571) 662, 675; National Insurance Corporation of Nigeria v. Power & Industrial Engineering Company Ltd. (1990) 1 NWLR (Pt. 129) 697, 707 where Court of Appeal stated thus:

“A person interested in a judgment by a court cannot apply by originating summons or by any other application to another court of co-ordinate jurisdiction to resolve any question of construction or interpretation arising in the judgment as that will amount to that court being invited to sit in judgment over the decision or order made by a brother Judge. Such a course of action or step is without competence.”

It seems to me also that both parties agreed that there is exception, like any other general principle of law, this principle equally, permit court to exercise certain restricted jurisdiction to set aside its own judgment or the judgment of a court of a co-ordinate jurisdiction. The court below, under its Rules, is empowered to set aside a judgment entered in default of the defendant’s appearance or in default of pleadings – Order 10 r. 11 and Order 25 r. 15 of the High Court of Lagos State (Civil Procedure) Rules, 1994. There are similar provisions in Order 15 r. 6 and Order 28 r. 9 of the Federal High Court (Civil Procedure) Rules. Vide Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC 145;-1onason Triangle Ltd. v, C.M. & Partners Ltd. (1999) 1 NWLR (Pt. 588) 555 and Credit Alliance Financial Services Ltd. v. Mallah (1998) 10 NWLR (Pt. 569) 341.

There is, however, inherent jurisdiction for the court to set aside its own decision obtained by fraud. See UBA Plc. v. Ajileye (1999) 13 NWLR (Pt. 633) 116.

I am unable to agree with the submission of the learned senior counsel for respondent, in the respondent’s brief, that the judgment of Ilori even if it were null and void, without so conceding, by virtue of Decree 21 of 1996 the learned trial Judge would not have been in a position to set the same aside. Learned senior counsel read from the case of Obioha v. Ibero (1994) 1 NWLR (Pt. 322) 503 at 523 – 524 per Supreme Court, sitting as a full court, to the effect that a court cannot vary, or amend its own judgment in the following situation.

“The general principle of the law is that after a judgment has been passed and entered even if it is a consent judgment entered under a mistake, that court cannot set it aside except in the following situations:

(a) where there has been a clerical mistake or an error arising from an accidental slip or omission

in the judgment under the slip rule?;

(b) where the judgment as drawn up does not correctly represent what the court actually decided or intended to decide?;

(c) where the order is a nullity owing to failure to comply with an essential provision such as service of process which can be set aside by the court which made the order?; and

(d) where a judgment or order is made against a party in default.”

The learned senior counsel read further from pages 532 to 534 of Obioha v. Ibero (supra) that –

“It is an elementary principle of law that where a court has decided an issue and the decision is correctly embodied in its judgment, such a court cannot re-open the matter in order to substitute a different decision in place of the one which had been recorded as it must have become functus officio. To hold otherwise would in effect give jurisdiction to a court to sit on appeal over, or review of, its judgment or order. Any party who seeks to alter or amend it must invoke such appellate jurisdiction as may be available. This is because the law does not permit a court any double say in the same matter … It is the law that a court cannot vary its judgment or order which correctly represents it’s decision, nor may it vary the operative and substantive part of its judgment so as to substitute a different form. The error or omission which the court can correct must be an error in expressing the manifest intention of the court.”

Learned senior counsel also read from the case of Okoye v. Nigeria Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 537-538 wherein the Supreme Court had earlier pronounced on the principle as follows –

“It is the law that if an order of court is a nullity it can be set aside without much ado. Such judgments are rendered null and void by a fundamental defect and can be set aside … Generally speaking, no court of concurrent jurisdiction has the power or jurisdiction (save when expressly conferred by the rules in cases such as where an order has been made in the absence of one of the parties) to review an order made by another court or Judge of concurrent jurisdiction. That is an order more appropriately exercisable by an appellate court.” (Italics for emphasis).

See also the case of Attorney-General, Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396, where the Supreme Court opined as follows:

“A judgment which is given without compliance with the rules of court and which non-compliance has breached a fundamental human right such as the right of fair hearing, is a nullity and is capable of being set aside either by the court that gave it or by an appellate court. ”

I am, however, unable to agree with the submission of the learned senior counsel for respondent, with the greatest respect, that the power of a court to set aside its own previous null and void decision is limited only to procedural matters and not matters of substantive law touching upon interpretation of statute. The case of Attorney-General, Anambra State v. Okafor (supra) clearly permits court to set aside its null and void decision that breached the fundamental right of a party, such as right to property of the appellant. It is equally, my respectful opinion that the trial court can set aside its own decision where it will work in Juctice on one of the parties. I am respectfully of the opinion that to insist that the appellant could have appealed against the earlier decision of Ilori, J., would be not only unjust but also inequitable. The Forfeiture of Assets (Release of Certain Forfeited Properties, etc) (Amendment) Decree No.21 of 1996 was made on 3rd day of July, 1996 when, appellant’s right of appeal might have expired by effusion of time.

There is, however, substance in the submission of the learned counsel for appellant that the case of Obioha v. Ibero (supra) is not applicable to the circumstance of the present case. The issue in Ibero’s case was correction or amendment or review of the decision in that case whereas the issue being contested in the instant appeal is setting aside of the judgment. All the cases cited in this case dealing with setting aside of a previous null, and void decision do not completely rule out nor exclude the possibility of the trial court setting aside its own decision rather it is preferred that the same power be exercised by a court exercising appellate jurisdiction, vide Attorney-General, Anambra State v. Okafor (supra); Okoye v. Nigeria Construction & Furniture Co. Ltd. (supra). I am encouraged in this view by the case of Odofin v. Olabanji (1996) 3 NWLR (Pt. 435) 126 which draws a distinction between seeking a review of a judgment and seeking for an order to set aside a judgment on account of nullity. At page 133 of the report, the Supreme Court enunciated on the point while dealing with the submission of the learned counsel for the respondent in that case the court could not sit on appeal over its own decision thus –

“But this application does not seek review of the judgment of the court but seeks to have the judgment set aside on the ground that it is a nullity. It is settled law that a court (and that includes this court) has an inherent jurisdiction to set aside its judgment or decision that is a nullity … I therefore reject plaintiff’s contention that this court has no jurisdiction to entertain the application now before us.”

The appellant’s case both in its originating summons and address of counsel in the court below was premised on the contention that the judgment in the earlier suit No. M/415/95 was rendered null and void by the statutory provisions of Decree No.21 of 1996. It was merely seeking in the latter suit the setting aside of a null and void judgment given in an earlier case. I agree with the learned counsel for appellant that a court has inherent jurisdiction to set aside its own null and void decision or order and also the null and void judgment of a court of co-ordinate jurisdiction. See Skenconsult Ltd. v. Ukey (1981) 1 SC 6 afortiori a person whose interest is affected by such decision can come to court without any further assurance or ado to have it set aside ex debito justiciae by the same court. See Egbuziem v. N.R.C. (1994) 3 NWLR (Pt.330) 23, 33 referred to in the appellant’s brief. See also Koden v. Shidon (supra); Obayiuwana v. Ede (1998) 1 NWLR (Pt. 535) 670, 679-680; Maiwada v. Pate (1995) 8 NWLR (Pt.412) 191; Adegoke Motors v. Dr. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250 and Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) 314 wherein Achike, JSC underlined this point in the following terms –

“I must not be misunderstood to be saying that application to the court that made the ineffectual order is the only mode open for setting aside the void act or judgment. For avoidance of doubt, it may be stated that it is a matter of choice to proceed to set aside a judgment that amounts to a nullity either by a simple application to the court that made it or to appeal against it.” (Italics for emphasis)

It therefore, seems to me, on the authorities, that a decision or order or judgments of a court which is a nullity can be set aside by the Judge who made the order or a Judge of the same court. Any act, including a decision or judgment, which is classified as a nullity, is deemed to be not in existence, vide Baker v. Raine Engineering Co. Ltd. (1971) NLR Commercial 264, 271-2.

In setting aside a void order or judgment it is irrelevant which Judge, be it the Judge that issued the alleged void order or another Judge of the court of concurrent jurisdiction that sets aside the order. The order being null and void can be set aside by the Judge who made it or another Judge of the same court through a judicial pronouncement without the necessity of an appeal. The statement of Denning, M.R., in the case Mcfoy v. U.A. C. Ltd. (1961) 3 All ER 1169, is still valid today as it was when it was first made; at page 1172 the erudite law Lord said that –

“If an act is void then it is in law void. It is not only bad but incurably bad. There is no need to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay. It will collapse.” (Italics mine).

The Supreme Court examined this dictum in Rossek v. A.C.B. (1993) 8 NWLR (Pt. 312) 382, 489 and agree with the master of the rolls to the effect that an act which is void is a nullity and is incurably bad. The learned Juctices of the Supreme Court unanimously agreed that a null and void act must be declared a nullity by a court of competent jurisdiction and should not be disobeyed before such judicial declaration is handed down apparently to avoid chaos. In the words of Karibi- Whyte, JSC:

“I venture to postulate that since the non-compliance results in a purported judicial act and, is the consequence of a judicial proceeding, it is only proper to declare its invalidity through a judicial act. I do not think the procedure for declaring the act a nullity has the effect of conferring any validity on the act. The statement that the act is valid until it is set aside, though well settled, is and clearly represent the accepted legal position. It is however, correct to say also that it is a purported validity, deemed to be so, until the invalidity is established by judicial declaration.”

I do not respectfully think that the phrase “judicial declaration” used in the above-quoted dictum relates to exclusively bringing or filing a fresh action. It is convenient to move the Judge who made the alleged null and void order to set it aside.

The issue whether a court of co-ordinate jurisdiction can declare a void judgment delivered by a Judge other than the one being asked to set the decision aside was in contention before the Supreme Court in Skenconcult v. Ukey (supra) 33. The court, after considering both our local and foreign authorities on the matter, made a distinction between a fundamental defect which goes to the root of the courts jurisdiction or competence and a competent court which after hearing evidence pursuance of exercising it’s judicial function came to a wrong decision or exercised its discretion wrongly. In the former case, the proceedings and the order made are held to be nullities but, in the latter case, the order is held to be erroneous and only appealable.

The distinction is clearly underscored by the judgment of the Supreme Court in the case of Attorney-General, Anambra State v. Okafor (1992) 2 NWLR (Pt.224) 396, 429 per Nnameka-Agu, JSC thus – .

“There is a distinction in principle between an order or judgment which a court is not competent to make and an order judgment or which even it erroneous in point or in fact is within the court’s jurisdiction and competence. Where there is no jurisdiction the decision is void. But where the decision is merely erroneous, the point is a matter for appeal. Where a proceeding is incompetent or without jurisdiction or a judgment or order is void for want of jurisdiction no right can be hoisted on it.”

The Supreme Court in its earlier decision in the Skenconsult Ltd. v. Ukey (supra) considered the distinction drawn by, Lord Greene, M.R. in Craig v. Kanssen (1943) K.B. 256 “between proceedings or orders which are nullities and those in respect of which there has been nothing worse than any irregularities. It then came to the conclusion that –

“It is, therefore, my view that it is the High Court from which the order complained of emanated that must set it aside not necessarily the Judge of the High Court who originally made the order. In the circumstances of this case, I hold that the High Court of Bendel State presided over by Maidoh, J. ought to have set aside the offending orders.” (Italics mine).

The High Court of Lagos State presided over by Ade Alabi, J. (as he then was) has competence to set aside the judgment of Ilori, J. (as he then was) if it was given without jurisdiction or competence.

The question is whether, in the circumstance of the case, the court below could have set aside the judgment in suit No. M/415/95. In his judgment, Ilori, J., reasoned inter alia as follows –

“Even if I am wrong in this conclusion, the question must still be asked whether the Decree should be interpreted without regard to its obvious purpose. It is trite law that when interpreting a statute, the court must find the object of the law maker and endeavour to object. The court must make allowance for obvious drafting errors and make good omissions necessary to attain the object of the statute. This duty was postulated in those immortal words by Mackinnon, L.J. in 3 Sutherland Publishing Co. Ltd. v. Caxton Publishing Co. Ltd. (1938) Ch. 174 at 201:

‘When the purpose of an enactment is clear, it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used, and of which the plain meaning would defeat the obvious intention of the legislature. It may even be necessary, and therefore legitimate, to substitute for an inept word or words that which such intention requires.’

The clear intention of Decree No.54 of 1993 is to release to vest in the people mentioned in column 1 of the Schedule, the property listed in the 2nd Schedule thereto. If the instrument of forfeiture of those property are either improperly described or totally omitted, it will be legitimate for the court to correct, supply or substitute the proper details of such instruments.”

Respectfully, I think Ilori, J., hurriedly jumped boat by his conclusion which is pegged clearly on Decree No.54 of 1993. The intention of the legislature in making Forfeiture of Assets (Release of Certain Forfeited Properties, etc) Decree, 1993 can easily, be deduced from section 1 of the Decree. It reads thus –

“As from the commencement of this Decree all the properties specified in the second column to the Schedule to this Decree, properties being properties forfeited to the Federal Government and some State Governments under the Public Officers (Forfeiture of Assets) Order 1977 and the Public Officers (Forfeiture of Assets) Order, 1978 are hereby released to the persons named in the first column to the Schedule to this Decree.”

It is clear from the above that the property intended to be released to the people whose assets were forfeited to either Federal or State Governments were virtue of Public Officers (Forfeiture of Assets) Order L.N. 13 of 1977 as well as Public Officers (Forfeiture of Assets) Order L.N. 33 of 1978. Mr. J.O. Adeyemi-Bero is number 2 on the Schedule and his assets are set out in the second column of the Schedule. Mr. Adeyemi-Bero’s three property were forfeited to the Lagos State Government by virtue of The Determination of Interests in State Lands (No. 1) Order LSLN 9 of 1976 made pursuant to section 1 of The Determination of Certain Interests in Land Edict (No.3) of 1976., There is no where in the Forfeiture of Assets (Release of Certain Forfeited Properties, etc) Decree No.54 of 1993 which commenced on 23rd August, 1993 authorizing the release of the property forfeited by dint of The Determination of Interests in State Lands (No.1) Order LSLN 9 of 1976. It is, my respectful opinion, that a person including Federal Military Government cannot give what it does not have. This is encapsulated in the latin words nemo dat quod non habet.

To my mind, Ilori, J., respectfully abandoned this toga of interpretation and put on that of a law giver. The function of the judiciary is that of interpretation while it is the duty of the legislature to make law and where there is a gap it is for the law giver to correct it by inserting the necessary amendment as an enactment may not be abrogated under the pre of interpretation. In Magor & St. Mellons v. Newport Corporation (1951) 2 All ER 839, 841 Vicount Simmonds said:-

“The duty of the court is to interpret the words that the legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery is strictly limited.”

For the court to interprete or write what the legislature has not written would amount to the court enacting laws and Lord Simmonds described such action in Magor & St. Mellons case (supra) as –

” … a naked usurpation of the legislative function under the thin disguise of interpretation, and it is the less justifiable when it is guess work, with what material the legislature would, if it had discovered the gap, have filled it.”

Also in Samuel Ekoecha v. The Civil Service Commission Imo State (1981) 1 NCLR 154, 161, Oputa, J. (as he then was) citing Bowen L.J. in Re Cumo (1889) 43 Ch.D. 12, 19 said-

“In the construction of statutes you must not construe the words so as to take away rights which already existed before the statute passed unless you have plain words which indicate that such was the intention of the legislature.”

The learned Judge had no business straining the words of the statute. The words of Decree No. 54 of 1993 had no intention to strip Lagos State Development and Property Corporation of its interest in the forfeited property. The ambiguity in the statute, in the interest of Juctice ought to have been resolved in favour of the corporation and against Adeyemi-Bero who has the onus of producing an amended Decree No.54 of 1993 or otherwise.

Be that as it may, Forfeiture of Assets (Release of Certain Forfeiture Properties etc) (Amendment) Decree No.21 of 1996 seems to embrace the principle of nemo dat quod non habet which was appreciated by the court below. It is apt at this stage to recite the preamble of that Decree along with its section 1. It reads thus –

“Whereas the Federal Military Government promulgated the Forfeiture of Assets (Release of Certain Forfeited Properties etc) Decree 1993;

And Whereas by the Forfeiture of Assets (Release of Certain Forfeited Properties, etc) Decree 1993, Item 2 of the Schedule released certain properties to Mr. J.O. Adeyemi-Bero;

And Whereas the Lagos State Government has petitioned the Federal Military Government on the matter of the aforementioned release of properties to the said Mr. J.O. Adeyemi-Bero on the ground that the said properties were never forfeited to the Federal Government under Legal Notices Nos. 13 and 33 of 1977 and 1978 respectively.

And Whereas consequent upon a further consideration of the matter and in the interest of Juctice and fair play, the Federal Military Government finds it expedient to resolve the irregularity created hitherto.

Now therefore the Federal Military Government hereby Decree as follows –

1(1) The preamble to this Decree is hereby affirmed and declared as forming part of this Decree. (2) Accordingly, the Forfeiture of Assets (Release of Certain Properties etc) Decree 1993 is amended in the Schedule thereto by deleting item 2.” (Italics mine).

Decree 21 of 1996 had a retroactive commencement date of 6th June, 1995 about a month before first respondent instituted his action by originating summons against the Military Administrator of Lagos State, Attorney-General, Lagos State and Registrar of Titles in suit No. M/415/95 on 7th July, 1995. It implied that on the day the action was instituted item 2 of vesting the first respondent with property set out in the second column of Schedule had been deleted. Consequently I1ori, J., predicated his decision on a non-existent enactment.

Assuming without so deciding I1ori, J., (as he was then) had excuse for so deciding since he had no means of knowing that a retrospective legislation was in the offing it is, however doubtful if the same excuse could be extended to Ade Alabi, J. (as he then was). He had opportunity of seeing and reading Decree No.21 of 1996 particularly section 2 thereof which had the effect of declaring the proceedings before Ilori, J., in suit No. M/415/95 null and void ab initio. Section 2 of Forfeiture of Assets (Release of Certain Properties etc) (Amendment) Decree No.21 of 1996 provides thus-

2(1) No civil proceedings shall lie or be instituted in any court or tribunal on account of or in respect of anything done by the Federal Military Government by or under this Decree or in respect of any act, matter or thing done or purported to be done by the Federal Military Government with regard to the subject matter of this Decree or any act, matter or thing whatsoever, done or purported to be done under or pursuant to this Decree by the Federal Military Government and if any such proceedings are instituted before, on or after the commencement of this Decree, the proceedings shall abate, be discharged and made void and of no effect, and any right, interest or privilege accruing, obtained or granted or purported to have accrued, been obtained or granted thereby is hereby extinguished.

(2) Accordingly, any judgment or order of any court or tribunal delivered on or before the commencement of this Decree shall, by virtue of this Decree be made null and void and of no effect whatsoever.” (Italics mine).

In view of this express provisions of section 2 of this Decree the proceedings conducted before as well as the judgment of Ilori, J., are declared null or void and are of no effect. Consequently the issue is one of fundamental defect which went into the court’s jurisdiction and could, therefore, be set aside by the Judge who made the order or a Judge of co-ordinate jurisdiction of the High Court of Lagos State. This is not a matter in which the court was competent but decided the matter wrongly or erroneously.

It is trite that repeal of the law does not affect any act done or powers exercised under it before the repeal. See Lipede v. Sonekan (1995) 1 NWLR (Pt. 374) 668, 690; Umeji v. Attorney-General Imo State (1995) 4 NWLR (Pt. 391) 552, 587; Sossa v. Fokpo (2001) 1 NWLR (Pt. 693) 16, 30 and Njokamna v. Mowete (2001) 6 NWLR (Pt. 709) 351, 367 where the Court of Appeal, while relying on the decision in Sossa v. Fokpo (supra) which in turn was based on Lipede v. Sonekan (supra) and Umeji v. Attorney-General, 1mo State (supra) held that-

“The legal position is that the law applicable to a cause or matter and therefore the jurisdiction and competence of the court determined by the existing law or the law prevailing at the time the suit was filed and not by the change of the existing law. It is immaterial that during the trial the law has been repealed.

In the instant case, for Decree No. 12 of 1994 to oust the jurisdiction of the High Court in the suit which was filed in 1985 which was 9 years before the promulgation of the Decree. The provision of the Decree must specifically, state that it is meant to abort the proceedings in the particular case in question. A strict interpretation of the Decree must be given since the Decree is meant to oust the jurisdiction of the court in completing the case which was filed long before the Decree came into existence.”

The circumstance of this case takes it outside the decided cases cited by the learned senior counsel in first respondent’s brief. It is clear as was subsequently admitted in Decree No.21 of 1996 the property, of the first respondent was erroneously included in the Schedule to Decree No.54 of 1993. Apart from this, the intention of the new legislation to affect the vested right of the first respondent was manifested in no uncertain terms in Decree No.21 of 1996 particularly section 2 thereof which has been recited elsewhere in this judgment. I shall read again for easy reference and emphasis section 2(1) and (2) which provide inter alia as follows –

“….and if any such proceedings are instituted before, on or after the commencement of this Decree the proceedings shall abate, be discharged and made void and of no effect, and any right, interest or privilege accruing, obtained or granted or purported to have accrued, been obtained or granted thereby is hereby extinguished.

2. Accordingly, any judgment or order of any court or tribunal delivered on or before the commencement of this Decree shall, by virtue of this Decree, be made null and void and of no effect whatsoever.”

Respectfully no one including Biblical Thomas is left in doubt on these clear unequivocal and unambiguous words about the intention of the Federal Military Government about the purported accrued or vested interest of first respondent. The first respondent’s purported accrued interests were expressly extinguished. Both the proceedings and the judgment he obtained were pronounced for void.

Before closing this issue may I take advantage of this medium to remind ourselves of section 1(2) (b)(i) of the Federal Government (Supremacy and Enforcement of Powers) Decree 13 of 1984. It reads as follows –

“(2) It is hereby declared also that

(a) …

(b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federal Republic of Nigeria.

(i) no civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict and if any such proceedings are instituted before, on or after the commencement of this Decree the proceedings shall abate, be discharged and made void.” (Italics mine).

The words of section 1(2) (b)(i) of Decree No. 13 of 1984 are clear, unambiguous and unequivocal. It is settled that where the words of an enactment are clear and unequivocal it should be given its literal and grammatical meaning. The Forfeiture of Assets (Release of Certain Forfeited Properties etc) Decree No. 54 of 1993 is clearly within the contemplation of Decree No. 13 of 1984. This Decree ousts the jurisdiction of a court in respect of any act, matter or thing done or alleged to have been done pursuance of any Decree or Edict. The Forfeiture of Assets (Release of Certain Forfeited Properties etc) Decree No. 54 of 1993 is clearly a Decree within the contemplation of Decree No. 13 of 1984. It was in force at the time material to the filing of suit No.M/415/95 by Mr. J.O. Adeyemi-Bero. The High Court of Lagos State had no jurisdiction to inquire or entertain same. IIori, J., ought not have taken cognizance of the suit ab initio on the strength of this Decree. Before the Federal Government (Supremacy and Enforcement of Powers) No. 13 of 1984, there was the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 28 of 1970. The latter Decree viz Decree No. 28 of 1970 had the effect of rendering null and void the Supreme Court decision in Lakanmi and Kikelomo Ola v. Attorney-General Western State & Ors.

On the issue of application of the doctrine of estoppel per rem judicatam to the present suit does not arise. It is clearly manifested that the High Court of Lagos State had no jurisdiction to entertain the suit No.M/415/95. It is equally a common ground that the principle of estoppel per rem judicatam can only be found on a valid judgment. In this connection the learned trial Judge in the instant appeal found as follows –

“Thirdly, the judgment which is to operate as an estoppel must be a final, valid and subsisting one. No judgment which has been set aside and in respect of which a retrial has been ordered can operate as an estoppel.”

It is my considered view, with the greatest respect, that since the judgment upon which the doctrine of estoppel per rem judicatam was based is a void one, the doctrine cannot operate or be applied to this suit.

Having resolved all the issues in this appeal in favour of appellant, the appeal succeeds and it is allowed.

The decision of Alabi, J., (as he then was) refusing to set aside the decision of High Court of Lagos State in suit M/415/95 is hereby set aside. This court under section 16 of the Court of Appeal is endowed with sufficient power to exercise the powers and functions of the lower court. Pursuant to that power I accede to the request of the appellants praying that the decision of High Court of Lagos State in suit No. M/415/95 be set aside and the property vested in Mr. J.O. Adeyemi-Bero by virtue of the judgment of Ilori, J., (as he then was) be reversed and the same be re-vested on appellant. For avoidance of doubt and without further assurance, it is hereby ordered as follows –

“(i) A declaration that, under and by virtue of Decree No. 21 of 1996, the judgment delivered by His Lordship, Honourable Juctice S. O. Ilori in suit No. M/415/95 between Chief J.O. Adeyemi-Bero and the Military Administrator of Lagos State & 2 Ors. in which judgment the court transferred interest in the property to Chief J.O. Adeyemi-Bero, is null and void and of no effect whatsoever.

(ii) A declaration that under and by dint of Decree No.21 of 1996, the property located at, lying, being and situate at –

(a) Plot 177, Victoria Island, Lagos; and

(b) No.25, Cooper Road, Ikoyi remain the property of the Lagos State Development and Properly Corporation and are accordingly vested in the appellant.

(iii) An order of perpetual injunction restraining the first defendant, his servants, agents, privies etc whosoever or whatsoever from dealing with the property in any manner or form or dealing with any of the tenants resident in any of the property.

(iv) An order of perpetual injunction restraining the first defendant through his agents, privies or anyone deriving title under him from exercising or purporting to exercise any right of ownership in whatsoever form -or shape in respect of the property aforesaid.

(v) An order of perpetual injunction restraining the Registrar of Titles either by himself, his agents, servants, privies or anybody whatever or whosoever claiming interest with them from effecting any change in the property as vested in 1976.

Although costs follow the event, it is in accord with interest of Juctice that each party, in the circumstance of this case, bears its or his own costs. I therefore make no order as to costs.

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Other Citations: (2004)LCN/1668(CA)