Mr. Johnson Afolabi Fashoyin V. Mr. Olayinka Abayomi & Ors (2016)
LawGlobal-Hub Lead Judgment Report
UZO I. NDUKWE-ANYANWU, J.C.A.
This is an appeal against the decision of the High Court of Lagos State delivered on the 4th April, 2011 by Hon. Justice B. O. Shitta-Bey.
The facts briefly stated are as follows;
The Respondents in this appeal (who were the Claimants in the original Suit No LD/76/1983) filed an action against the Defendants (Messr Fasheun Motors Nig Ltd and 19 others). On 10th October 1989, the Respondents obtained judgment against the Defendants before Hon. Justice Desalu. In consequence, execution was levied against some of the Defendants/Judgment Debtors’ landed properties. However no execution was levied against the landed property of the Appellant at no. 394 Lagos-Abeokuta expressway, Abule-Egba, lagos State until 8th May 2008 pursuant to an order of Court made on 28th January 2008.
Consequent upon the order made on 28/1/2008, the Appellant who was not a party to the original suit but felt aggrieved by the order applied vide a Motion on Notice dated 26th May 2008, on the following grounds:
a. The specific orders and/or reliefs of the said judgment are
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statute-barred;
b. The order extending time for the enforcement of the orders/reliefs in the judgment was made without jurisdiction and thus amount a nullity;
c. The consequential order of possession or warrant of possession made on 28th January 2008 was a nullity, having been made to enforce the orders/reliefs contained in a judgment after 19 years of its delivery;
d. The Appellant was not made a party to this suit at the Court below, even though he was in effective possession of the property at No. 394 Lagos Abeokuta Expressway, Abule Egba, Lagos State; he was also not aware of any action against his property until on 8th May 2008 when the Respondents attempted to levy execution on his property, and
e. The appellant’s property at no, 394 Lagos Abeokuta expressway, Abule Egba, Lagos State is outside the Respondents/Judgment creditors’ adjudged land;
f. The appellant’s predecessor in title has no connection whatsoever with the judgment debtors in this case’ the appellant bought his land in 1977 from the Olarokun’s family before the commencement of this suit.”
The Respondents opposed the Application and filed a counter affidavit
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dated 27th May, 2009.
The trial judge in his ruling dismissed the Appellant’s application on the ground that the Court was functus officio.
Dissatisfied with the said ruling, the Appellant filed a Notice of Appeal on 4th April, 2011 consisting of three (3) grounds of appeal.
In accordance with the Rules of Court parties have filed their respective brief of arguments.
When the appeal was heard on 4th April, 2016 the Appellant relied on the Appellant’s brief filed on 13th August 2015. The Appellant articulated two issues for determination:-
a. Whether the judgment of Hon. Justice Desalu of 10th October 1989 is enforceable against the Appellant after nineteen (19) years of its delivery?
b. Whether or not the order for the issuance of a new writ of possession made on 28/01/2008 is a nullity?”
The Respondents filed their brief on 13th August, 2015 and in addition filed a Notice of Preliminary objection praying this Court as follows:
(1) AN ORDER of this honourable Court striking out or dismissing this appeal as incompetent and abuse of the processes of this honourable Court.
(2) AND for such order or further
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other orders as this honourable Court may deem fit to make in the circumstances.”
The objection was predicated on the under mentioned grounds.
(1) The Appellant has no locus standi.
(2) Grounds 1 and 3 in the Notice of Appeal are deemed abandoned because no issue(s) were distilled from them.
(3) Ground 2 in the Notice of Appeal is incompetent on the ground that two issues were formulated from the ground.”
The Respondent raised one issue for determination as follows
“Whether the Appellant can challenge the judgment of Justice Desalu delivered on the 10th October, 1989 between the Respondents and Messrs Fasheun Motors Nigeria Limited and 19 others and by extension challenge the execution of the judgment”.
Learned counsel for the Appellant submitted that by virtue of Section 12 (2) of the Limitation Law of Lagos State, the Supreme Court case of PURIFICATION TECHNIQUE NIG LTD V. JUBRIL (2013) 9 WRN 18 and Order 4 Rule 1 of the Judgment Enforcement (Procedure) Rules, a judgment in respect of recovery of land is only enforceable within 12 years of its delivery. In this case, the judgment of Hon. Justice Desalu which was
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enforced 19 years after its delivery has therefore become statute barred. He also contended that the Respondents have slept on their right and are therefore guilty of delay. He referred to the case of ELEBANJO V. DAWODU () 15 NWLR (PT. 1001) 76
Counsel further submitted that the decision of the trial judge is perverse as it did not take into cognizance that there are two writs. He contended that the order of extension of time relied upon by the trial judge was in respect of the 1st writ issued 20th January 2016 and there is no order of extension on respect of the 2nd writ. He refer to the case of AKINOLA V V.C., UNILORIN (2004) 11 NWLR (Pt. 885) 616.
Issue 2
Counsel adopted his earlier argument on issue 1 and in addition stated that the effect of the order of the Court made in 2008 ordering the issuance of a new writ is to extend the time for the enforcement of the judgment which according to counsel no Court has the power to extend the time beyond that stipulated by the Statute as such the order was a nullity as the Court lacks the jurisdiction to make such order. He refered to Section 12 (2) of the Limitation Law of Lagos State and
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Order 4 Rule 1 of the Judgment Enforcement [Procedure) Rules.
He also contended that there was no provision of extension of time under Lagos State Limitation Law.
The Respondents on the other hand argued their preliminary objection and also formulated a sole issue in respect of the Appellant’s brief in the Respondents’ brief filed on 3rd December, 2015.
Arguing ground 1 of the preliminary objection, learned counsel for the Respondent submitted that it is settled law that after delivering a judgment on merit, the Court becomes functus officio except for Slip Rule. Hence the remedy available to a party dissatisfied with the judgment is to either appeal as of right against the judgment as a party on record or to appeal with leave as an interested party. He refered to the case of ENE V. ASIKPO (2010) 10 NWLR (PT 1203) 477; DINGIYANDI V. INEC (2011) 10 NWLR (PT 1255) 347; UKACHUKWU v. UBA (2005) 18 NWLR (PT 956) 1; ASSOCIATED DISCOUNT HOUSE LTD V. MINISTER OF FEDERAL CAPITAL TERRITORY, ABUJA (2014) ALL FWLR (PT. 713); SECTION 243 (a) OF THE 1999 CONSTITUTION. OKONKWO V. UBA (2011) 6-7 (PT. 1) 189. It is the contention of counsel that in the instant
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case the lower Court lacked the jurisdiction to set aside the judgment delivered by Hon. Justice Desalu in 1989 as the Appellant has no locus standi to apply to set aside the final judgment of Hon. Justice Desalu because he was not a party to the original suit nor has he applied for leave to appeal as an interested party against the said judgment.
In respect of ground 2, learned counsel for the Respondent submitted that it is trite that where no issue for determination is formulated from a ground of appeal, the said ground of appeal is deemed to be abandon and therefore liable to be struck out. It is the contention of counsel that ground 1 and 3 of the instant appeal are liable to be struck out as no issue was formulated therefrom. He thus urged this Court to strike out the said grounds. He referred to the case of OLAOLU V. STATE (2015) (PT. 794) 45; ALIMS NIG LTD V. UBA (2013) 1 MJSC (PT 1) 56; AKIBU v. ODUNTAN (2007) 7 SCNJ 189
In respect of the 3rd ground, Counsel submitted that it is trite that grounds of appeal must attack the ratio decidendi of the judgment/ruling appealed against otherwise the grounds of appeal and issues distilled from
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them are incompetent. He referred to the case of TERIBA V. ADEYEMO (2010) 4-7 MJSC (PT 11) 1; NJEMAZE V. NJEMAZE (2013) 3 MJSC (PT 11) 30; SARAKI v. KOTOYE (1992) 9 NWLR (PT 264) 156. He contended that the fulcrum of the judgment appealed against was that the Court was functus officio, and the Appellant having not appealed against this aspect of the said judgment, the appeal is incompetent. He thus urged this Court to dismiss the appeal. He referred to the judgment/ruling of the lower Court at page 156 of the record.
With regards to the sole issue, learned counsel for the respondent conceded that by the provision of Section 12(2) Limitation Law of Lagos State and the Supreme Court case of PURIFICATION TECHNIQUE NIGERIA LIMITED V. JUBRIL (supra) recovery of land upon judgment cannot be done at the expiration of 12 years from the date of the judgment, however counsel submitted that the Appellant has no locus standi to apply to have the judgment set aside because he was neither a party on record nor has he applied for leave to appeal as an interested parry. It is the contention of Counsel that only the party on record i.e. Messrs Fasheun Motors Nig Ltd and
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the other Respondents in the original suit that could seek to set aside the judgment of Hon. Justice Desalu on any ground and not the Appellant. He thus referred to the Appellant as a meddlesome interloper. Counsel urged the Court to uphold the Preliminary objection of the Respondent and then dismiss this appeal.
The Appellant in this appeal was not a party in the Court below.
He however, brought an application seeking the following orders:
1. AN ORDER for leave to set aside the judgment of this Court in this suit delivered on Tuesday 10th October 1989 by Hon. Justice Adebayo Desalu of the Lagos State High Court Ikeja to the extent, that it affects the property of the applicant being, located, situate and known as No, 394, Lagos Abeokuta Expressway, Abule-Egba, Lagos State.
2. AN ORDER setting aside the judgment of this Court delivered on 10th October 1989 by Hon, Justice Adebayo Desalu of the Lagos State High Court Ikeja to the extent that it affects the property of the applicant at No. 394 Lagos Abeokuta Expressway, Abule-Egba, Lagos State.
3. AN ORDER setting aside the Warrant of possession dated 28th January 2008 issued in
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respect of the said Judgment and signed by Hon. Justice Candide Johnson of the High Court of Lagos State, Ikeja, to the extent that it affects the applicant property at No. 394 Lagos Abeokuta Expressway, Abule-Egba, Lagos State.
4. AN ORDER staying further execution of the said judgment and the warrant of possession in this suit to the extent that it affect the applicants property at No. 394 Lagos Abeokuta Expressway, Abule-Egba, Lagos State.
5. AND for such further order or other orders as this Court may deem fit to make in the circumstances of this case.”
The Respondent filed a counter-affidavit. Written addresses were filed and exchanged. The trial judge thereafter delivered a considered Ruling on 4th April, 2011 upon which this appeal is predicated upon and refused the orders prayed for.
The Respondents filed a notice of Preliminary Objection which he couched thus:
2.03. The Respondents intend to raise and argue preliminary objection to the entire appeal and/or against some of the grounds of appeal/issues distilled from those grounds before or at the hearing of this appeal. The grounds of the preliminary objections are:
1) Not
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being a party/privy to the judgment of Justice Desalu delivered in 1989, and the Appellant has no locus standi in the case,
2) Grounds 1 and 3, in the Notice of Appeal were deemed abandoned because no issue(s) for determinations were distilled from them,
3) Ground 2 of the notice of appeal, which was hurriedly filed, did not arise from the Ruling of the Court delivered on the 4th April 2011.
4) In the alternative to (3), the Appellant formulated two issues for determination from ground 2 and therefore rendered the ground of appeal and the multiplicity of issues distilled from the ground as incurably bad/defective.
All the grounds of the preliminary objections are premised on points of law.”
The learned counsel to the Respondents articulated this issue for resolution. It reads thus:
Not being a party/privy to the judgment of Justice Desalu delivered in 1989, whether the Appellant has no locus standi in the case”.
This is a question that borders on the jurisdiction of the Court to adjudicate on this issue. The learned Respondent counsel contended that it is settled law that after delivering a judgment on merit, the
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Court becomes functus officio. Except for slip rule, the same Court cannot re-open the case or set aside its judgment. He opined that the remedy available to the parties to the judgment is to appeal against the judgment of this Court. Any other person(s) affected by the judgment has the right to appeal against the judgment as an interested party to the Court of Appeal. Ene v. Asikpo (2010) 10 NWLR Pt. 1203 page 477, Counsel argued further that the fall out of this legal principles are three fold viz:
1. The Court lacks jurisdiction to determine an issue it has already determined on the merit because the Court is functus officio.
DINGIYANDI V. INEC (2011) 10 NWLR (PT. 1255) 347, UKACHUKWU V. UBA (2005) 18 NWLR (PT. 956) 1 ANYAEGBUNA V. A.G. ANAMBRA (2001) 6 NWLR (PT.710) 532.
2. The remedy available to a party dissatisfied with the judgment is to appeal against the judgment.
3. The remedy available to any person who is not a party to the judgment is to appeal against the judgment as an interested party. Such party has no locus standi to apply to set aside the judgment”.
It is important in this case to discuss the importance of
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parties in any action in Court.
“The term parties included not only those named in the Record of Proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and to join as parties in the suit but chose not to do so and were content to stand by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their interest in the subject matter of the action. Ndulue v. Ibezim (200) 12 NWLR PT. 780 page 139.
Parties to an action have been classified into three:
a) Proper parties;
b) desirable parties and
c) necessary parties.
Proper parties are those who, though not interested in the claims are made parties, for some reasons, and desirable parties are those who have an interest or who may be affected by the result.
Dapialong v. Lalong (2007) 5 NWLR PT. 1026 page 199, Green v. Green (1989) 3 NWLR PT. 61 page 480.
The Appellant in this appeal was not a party in the Court below. Having brought a motion praying for the orders already captured earlier in this judgment. The question to be
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asked is whether the Appellant, not being a party in the Court below can bring an application to set aside the judgment of this Court? Does the Appellant have the locus standi to bring this application that culminated in this appeal?
“Locus standi or standing is the legal right of a party to an action to be heard in litigation before a Court of law or Tribunal. The term entails the legal capacity to instituting or commencing an action in a competent Court of law without any inhibition, obstruction or hindrance from any person or body whatsoever”
Inakoju v. Adeleke (2007) 4 NWLR PT. 1025 page 423, Akanni v. Odejide (2004) 9 NWLR Pt. 879 page 575.
For a person to bring an action in respect of any subject matter, such a person must show that he has a legal right or special interest in that subject matter. Akinubi v. Akinubi (1997) 2 NWLR PT. 486 page 144.
The Appellant has an interest in the res of this appeal but stood by whilst the suit in the trial Court was going on. He was content to stand by and see the battle in which his interest is directly in issue fought by somebody else. The Appellant did not show any interest until the Judgment
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was delivered and two subsequent rulings in this matter also delivered.
The Appellant woke up from his deep slumber when his property was about to be attached for execution. The Appellant then filed his application to set aside the judgment in a case he was not a party.
It is trite law that after a judgment on merit has been delivered, the Court thereafter becomes functus officio except for the slip rule. It therefore means that the Appellant who was not a party in the trial Court does not have the locus standi to bring an application to set aside the judgment. The only option left for the Appellant is to seek for leave to appeal against the judgment of the lower Court as an interested party. Associated Discount House Ltd. V. Ministry of F.C.T, Abuja (2014) All FWLR PT. 713 page….. The institute of Chartered Accountants of Nigeria (ICAN) v. Unegbu (2012) 2 NWLR PT. 1284 page 216, Okonkwo v. UBA (2011) 16 NWLR (Pt. 1274) 614; Contracted Resources Nigeria Ltd. v. UBA (2011) 6 – 7 SC Pt. III page 150. The Appellant in his application stated the grounds of his application as follows:
a. The judgment which the judgment creditors are relying upon
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is statute barred.
b. The applicant’s property at No, 394 Lagos Abeokuta expressway, Abule-Egba, Lagos State is outside the claimant’s adjudged land as the judgment does not covered the applicant’s property.
c. The applicant did not purchase the land on which his property at No. 394 Lagos Abeokuta Expressway, Abule-Egba is built from the judgment debtor in this case.
d. The applicant bought his land at No. 394 Lagos Abeokuta expressway, Abule-Egba in 1977 from the Olarokun’s family before the commencement of this suit and was put to immediate possession of same.
e. The Applicant was not a party to this suit having been in possession of the property at No 394 Lagos Abeokuta expressway, Abule-Egba neither was he aware of any action against his property until the 8th day of May 2008 when the Court’s Sheriffs came to his property and the whole neighbourhood in purported execution of the judgment in this suit.
f. There is no consequential order for possession by the claimants/judgment creditor upon which the warrant for possession issued for the said execution can stand on.
g. The claim of the claimant/judgment creditors as contained
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in the Writ of Summons and Statement of Claim is only for forteiture, arrears of rent and Mesne Profit but not for possession.
h. The applicant predecessor in title has no connection whatsoever with the judgment debtors in this case.
i. The judgment creditors did not serve any Court processes on the applicant either during the commencement of this suit or during the trial of this case.
j. Other grounds of this application are contained in the attached affidavit and those not contained in the affidavit will be filed later.
The grounds for this application to set aside the judgment of the lower Court does not fall within the reasons that will persuade a Court to exercise its discretion to set aside its judgment delivered on merit. The Appellant did not allege fraud. Olufumise v. Falana (1990) 3 NWLR Pt. 136 page 1, Anatogu v. Iweka II (1995) 8 NWLR Pt. 415, page 547, Arowola v. Ifabuyi (2002) 4 NWLR Pt 757 page 356.
There are really circumstances where a Court can set aside its own judgment. The judgment must have been obtained in the absence of one of the parties or in default of pleadings. There is also an inherent power of the Court
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to set aside its judgment which had been obtained as a result of fraud on the part of one of the parties or for reason of want of jurisdiction, the judgment is a nullity or where it is obvious that the Court was misled into giving the judgment under the mistaken belief that the parties consented to it.
Agunbiade v. Odunoga & Co. (1961) All NLR page 119, Nwabudike v. Omokaro (2010) LPELR 4637.
The Appellant in this appeal had not alleged any of the situations set out above that will persuade the Court to review its judgment. The Court had delivered its judgment and was therefore functus officio. This means that after a Judge had delivered its judgment in a matter, he becomes functus officio to the extent that the only jurisdiction left in the Court is the correction of accidental slips or errors under the “slip rule”. In effect the Court has no jurisdiction, Constitutional Statutory or inherent to review its own orders once it has delivered judgment. See Aba South Local Government Area v. Nwejiobi (2008) 6 NWLR Pt. 1084 page 503.
In this appeal, the lower Court having delivered its judgment became functus officio as regards this matter. It
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ceased to have any other authority or legal competence to entertain any application that would have the effect of changing its decision in any way.
The lower Court was therefore right when it ruled that it had no jurisdiction to entertain the application urging the Court to set aside its earlier judgment. The Preliminary objection is upheld. There is therefore no reason to continue this judgment beyond the Preliminary objection. It would be a mere exercise in futility.
This appeal is therefore unmeritorious and is hereby dismissed.
Cost of N50, 000.00 is awarded against the Appellant in favour of the Respondent.
Other Citations: (2016)LCN/8854(CA)
