Mr. Ubi Solomon Ubi & Anor V. Mr. Patrick Otu Ubi (2016)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
The present appeal is consequent upon the ruling of the High Court of Cross River State, holden at Ugep Judicial Division, delivered on October 31, 2013 in Suit No, HUG/30/2013. By the said ruling, the Court below, coram E. E. Ita, J; dismissed the Appellants’ suit seeking to set aside the consent judgment delivered in Suit No. HUG/31/2010 on October 31, 2012. Aggrieved by the said decision, the Appellants filed the notice of appeal thereof in the Court below on November 5, 2013.
BACKGROUND FACTS
On August 19, 2013, the Appellants filed the instant suit in the Court below thereby seeking against the Respondent inter alia some declaratory reliefs:
”a. An Order setting aside the purported consent judgment delivered in Suit No. HUG/31/2010 by Honourable Justice Michael Edem of the High Court of Cross River State sitting in Ugep on the 31st October, 2012 and to set down the case HUG/31/2010 for hearing on the judgments between the Claimants and Defendant in the interest of justice and fair hearing to all parties.
b. An Order declaring that by virtue of the Certificate
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of occupancy UG/11/81, the property an uncompleted storey building lying and situate at Ikom-Calabar Highway, Convent Village in Ugep, Yakurr Local Government Area of Cross River State is the bona-fide property of Late Mr. Solomon Ubi Edu which said property automatically devolved on the deceased’s estate.
c. An Order declaring that the various actions or interference by the Defendant with the subject matter and the deliberate fraud and forgery of documents in his favour to appropriate the subject matter to himself as well as his futile attempt to eject the Claimants and dispossess them of their property constitutes acts of trespass.
d. An Order awarding the sum of N5,000,000.00 only as general damages against the defendant for all the various acts of harassment, intimidation and undue interference with the subject matter.
e. Any other Order the Court may deem fit to make in the circumstance of the case.
See pages 15 – 16 of the Record.
Pleadings were filed by the respective parties. However, in the course of trial the Respondent filed an application on September 12, 2013 in the Court below, praying for the following reliefs:
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”1. AN ORDER of Court extending time within which the Applicant may file their defence and counter claim to HUG/30/2013 out of time.
2. AN ORDER of Court extending time for the Applicant to file his preliminary objection out of time.
3. AN ORDER of Court dismissing SUIT NO. HUG/30/2013 in limine for being manifestly incompetent.
4. AN ORDER of Court deeming the statement of defence and counter claim and the preliminary objection filed herein as been properly filed and served the necessary fee having been fully paid.?
See page 103 of Record.
The application was supported by a 12 paragraphed affidavit, deposed to by the Respondent himself. Attached to the said affidavit were various exhibits. Learned counsel to the parties filed their respective written addresses, which they adopted on October 25, 2013. Whereupon, the Court below adjourned to October 31, 2013 for ruling. On the said date, Court delivered the vexed ruling to the conclusive effect, thus:
”I must remind us here that I am a Judge in the High Court of Cross River State just like Hon. Justice M. Edem who entered the consent judgment. There is no allegation that the
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judgment is a nullity to clothe me with jurisdiction to set it aside. As stated above, Hon. Justice Edem duly considered the objection of the claimant’s son in HUG/3/2010 before he entered the consent judgment. I have no jurisdiction to review that ruling. A party aggrieved by that has his remedy in an appeal.
For the above reason this action is hereby dismissed.
I award cost of N50,000.00 against the claimants.”
As alluded to above, the appeal is against the said ruling of the Court below.
The appeal having been entered on December 23, 2013, the parties proceeded to file their respective briefs of argument.
The Appellants’ brief was filed on October 16, 2014, but deemed properly filed and served on June 4, 2015. It spans a total of 15 pages. At page 3 thereof, two issues have been formulated, viz:
“1. Whether the purported consent judgment in this case is not a nullity on the face of it, entitling the trial judge in HUG/30/2013 to set it aside, being a Court of, coordinate jurisdiction and whether it was proper for the learned trial judge, to dismiss the matter at this stage without hearing before arriving of the conclusion.
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2. Whether the trial judge can rightly dismiss the suit at the stage it did as per the reasons contained in the ruling of the trial Court without first hearing same or whether a trial Court can abandon the issues or applications brought before it and proceed to dismiss a claimants case on entirely new issues not canvassed by parties?”
The issue No. 1 is canvassed at pages 4 – 7 of the Appellants’ brief. It was submitted to the effect, that the so called consent judgment is on the face of it, a nullity by its failure to incorporate therein the purported terms of settlement which ought to form the basis of the judgment.
Further submitted, that a consent judgment must possess the attributes or features of a valid judgment of Court. See WOLUCHEM VS. WOKOMA (1994) NSCC 181 @ 188. Allegedly, the consent ruling in question failed to incorporate the alleged terms of the parties thereto. Thus, such a document cannot be a valid judgment, the basis upon which a party should be deprived of his property without being heard in a fair trial.
It was contended, that once the judgment of a Court is a nullity, it can be set aside by the same judge
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who entered it, or a Court of coordinate jurisdiction. See SACHIA VS. KWANDE LGC (1990) 5 WRN (PT.152) 551; SKENCONSULT NIG. LTD. VS. UKEY (1981) 1 SC 6; ONYEDIBE VS. MADUEKWE (2012) ALL FWLR (PT. 630) 1342 @ 1349; YAKUBU VS. GOV. OF KOGI STATE (1997) 7 NWLR (PT. 511) 66.
Further contended, that the dismissal of the Appellants’ case amounts to a denial of fair hearing. See MOHAMMED VS. OLAWONMI (1990) 2 NWLR (PT. 133) 458 @ 485; NWOKORO VS. ONUMMA (1990) 3 NWLR (PT. 136) 22 @ 31.
Conclusively, the Court is urged upon to hold that the consent judgment being challenged in suit No. HUG/30/2013 is a nullity on the face of it, entitling the trial judge to set same aside.
The issue No. 2 is argued at pages 7 – 12 of the brief, to the effect that the Court below acted completely in error in dismissing the case, see YAKUBU VS. GOV. OF KOGI STATE (1997) 7 NWLR (PT.511) 66; IFELOJU VS. KUKU (1991) 5 NWLR (Pt.189) 65 @ 78 ? 79.
Further submitted, that the Appellants’ counter affidavit and written addresses essentially pointed out the incompetence and irregularities in the Respondent’s processes. But the Court below was silent on those issues.
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That a trial Court is expected at all times to pronounce on all issues placed before it by parties. See INTERNATIONAL BEER & BEVERAGES IND. LTD. VS. MUTUNCI COMPANY (NIG.) LTD. (2013) FWLR (PT. 670) 1253 @ 1256; et al.
Conclusively, the Court is urged upon to set aside the vexed decision of the Court below, and remit the case thereto for a proper trial before another judge
?On the other hand, the Respondent’s brief was filed on December 12, 2014, but deemed properly filed and served on March 21, 2016. It spans a total of 11 pages. At page 2 thereof, three issues have been formulated for determination, viz:
1. Whether the consent judgment delivered in the absence of fraud can be set aside by the Court.
2. Whether the Appellants who were not parties in HUG/31/2010 for which consent judgment was delivered have locus standi to apply for setting aside of the judgment without first for leave a substitute the original party now deceased.
3. Whether the appeal is maintainable in the face of an application to have the appeal dismissed for want of prosecution of the appeal.
The issue No. 1 was canvassed at pages 2 – 4. In a nutshell, it
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was submitted that in the instant case, there is a written document and intention of the parties spelt out; it?s the duty of the Court to give effect thereto. See ADIELE IHUNWO vs. JOHNSON IHUNWO (2013) 8 NWLR (PT. 1357) 550 @ 556. Referring to page 61 Paragraphs 2, 3 and 4 of the record, it was contended that the parties were desirous to have the matter amicably resolved.
Further submitted, that it was the conviction of the Court below that the terms of settlement were arrived at with adidem consensus, for which reason the dissenting voice of the 2nd Appellant that featured prominently during the peace process was jettisoned.
It was contended, that there is no element of fraud involved in the terms of settlement making it a nullity capable of being set aside. That the parties to this case had chosen a mediator to be their judge and do not want to go through the regular Courts. Therefore, they cannot now object to the award on grounds of law or facts. See COMMERCE ASSURANCE LTD. VS. ALHAJI BURAIMOH ALLI (1992) 1 NSCC 556 @ 559 H-7.
Further contended, that where a judgment is made based on fraud and concealment of material fact, it’s liable
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to be set aside. But where there is no proof of fraud established, such a judgment cannot be set aside. see ASSOCIATED DISCOUNT HOUSE LTD. VS. MINISTER OF FEDERAL CAPITAL TERRITORY (2013) 8 NWLR (pt. 1357) 493 @ 450 H-9.
The Court is urged to uphold the issue, and dismiss the appeal.
The issue No. 2 is canvassed at pages 4 – 5, to the effect that the course of justice open to the Appellants would have been to seek leave of Court to substitute the deceased claimant. This, they did not do. As such, their action before the Court below and this Court is allegedly incompetent.
The issue No. 3 is canvassed at pages 6 – 11 of the brief. It was submitted, that the appeal is incompetent robbing the Court the jurisdictional competence to entertain it. See JOHN CHUWUKA VS. NDUBUEZE GREGORY EZULIKE (1986) 12 SC 246 @ 251.
Further submitted, that it’s the law that a judgment which is a nullity can be set aside by the same Court. But in this case there is no element of fraud making the consent judgment a nullity capable of being set aside. It’s contended, that the case of WOLUCHEM VS. WOKOMA (supra) is inapplicable to this case, and should be
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discountenanced. That where a Court makes an order setting its judgment in the absence of a clerical error of proof of fraud, the order will become a nullity. See ASSOCIATED DISCOUNT LTD. VS. MIN. OF FCT (supra) @ 501 H-9. Thus, this Court cannot be invited to set aside its valid judgment without proof of fraud, concealment of facts or clerical errors.
Responding to issue 2 of the Appellants, it was submitted that though not conceding that the ruling in HUG/30/2013 is mistaken, it is not every mistake or error in a judgment that would determine an appeal in favour of the Appellant for appeal being allowed. That what is important is for the Court to decide if the judgment is correct and not whether the reasons for the judgments are correct. see PRINCE ABUBAKAR AUDU VS. AG. FEDERATION (2013) 8 NWLR (PT.1355) 175 @ 190 H-20.
Conclusively, the Court is urged to dismiss the appeal.
The Appellants’ reply brief filed on April 8, 2016, but deemed properly filed on April 20, 2016 spans a total of 17 pages. By the said reply brief, the Court is urged upon to accordingly disregard the Respondent’s argument, allow the appeal and accordingly set aside the
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so called consent judgment entirely as being a nullity.
Having considered the submissions of the learned counsel, contained in their respective briefs vis-a-vis the record of appeal as a whole, I am inclined to adopt the two issues canvassed by the Appellants in the brief thereof for determination, anon. However, I have deemed it expedient to deal, first and foremost, with the second issue because of the fundamental question of denial (breach) of fair hearing raised therein.
ISSUE NO. 2
The second issue raises the fundamental question of whether the Court below rightly dismissed the suit at the stage it did without first hearing same.
Instructively, the term consent judgment denotes a judgment entered pursuant to the mutual consent of the respective parties in the suit. Thus, by the very nature thereof, a consent judgment is fundamentally a contractual agreement between the respective parties. In effect, a consent judgment constitutes a final decision of the Court which can only be appealed against, with the leave of the Court. See WOLUCHEM. VS. WOKOMA (1974) S SC 153 @ 166; (1974) LPELR-3502 (SC); OJORA Vs. AGP OIL PLC (2005) 4
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NWLR (PT.916) 515; RACE AUTO SUPPLY COY. LTD. VS. AKIB (2006) 6 SCNJ 98; (2006) 6 SC 1 @ 17.
In WOLUCHEM VS. WOKOMA (supra), the Apex Court held:
”The rule is that actions may be settled by consent during the trial. Usually such settlement is a compromise and, in order to have a binding effect on the parties, it is imperative that it should have the blessing of the Court. Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and consideration of, the abandonment of the claim or claims pending before the Court. When the Court moves and takes action as agreed upon by the parties, it becomes a consent judgment. In such a situation, the Court may give judgment, or make an order of discontinuance or may order a stay, in so far as the circumstances of the case may permit.
Per Ibekwe, JSC (as he then was) @ 19-20, Paragraphs E-F.
The far-reaching fundamental objective of a consent judgment is not farfetched. As pontificated upon by Lord Herschel, L.C more than a century ago:
”The truth is a judgment by consent is intended to put a stop to litigation between the parties
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just as much as is judgment which results from the decision of the Court after the matter has been fought to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgment and were to allow question that were really involved in the action to be fought over again in a subsequent action.”
See IN RE SOUTH AMERICA AND MEXICAN COMPANY EXPERTE BANK OF ENGLAND (1885),CH .37 @ 50 referred to with approval in RACE AUTO SUPPLY CO. LTD. vs. AKIB (2006) 6 LPELR-2937 (SC).
In the case of RACE AUTO SUPPLY COY LTD Vs AKIB (supra), the Supreme Court authoritatively held thus:
”In line with this definition where the parties before a Court have agreed on how their dispute should be determined and ask the Court to enter judgment by consent and in accordance with their terms of settlement and the Court orders with their consent that a judgment be entered, the product is a consent judgment. In this regard it is necessary to point out that a consent judgment or order is as effective in law in respect of all the matters which here in settled as any other judgment or order arrived at after the matters are
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fully fought out, to the end in a full trial. Per Mohammed, JSC @ 17 (as he then was).”
The principle is equally well settled to the effect, that no consent judgment or order has the slightest operation or effect whether by way of estoppel or otherwise, against a third party or any of the parties who is not shown to have consented to it.
However, it’s most inconceivable that one of the parties consenting to a consent (compromised) judgment should be at liberty to contend in subsequent proceedings between the same parties, that he is not bound by the judgment or order to which he had previously consented. See ALABI VS. ADESEYE (1972) LPELR 3134 (SC); (1972) ALL NLR 692 (1972) 8 – 9 SC 15 Per COKER, JSC @ 18 – 19 Paragraphs F – A.
In the instant case, the terms of settlement upon which the consent judgment inquisition was predicated are contained at pages 61 – 63 of the Record of Appeal. By the said terms of settlement, the committee of 8 notable people of Ugep that reconciled the disputing parties are to the following effect:
”1. whereas when this case came before his Lordship, Honourable Justice Michael Edem on the 16th day of April, 2012 he
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graciously acceded to an application made by Barrister Okoi Ofem Obono-Obla (hereinafter referred as Mediator) that he be granted leave to reconcile the claimant and the Defendant (hereinafter referred to as parties) who are from the same family so that the bond of love and brotherhood which prevailed in the family would not be permanently destroyed by a protracted litigation.
2. subsequently the Mediator constituted a committee which consists of Obol Eyong Jarvis, Obol Lekom of Unebu, Ijom, Ugep; Chief Christopher Iyam Egu, Traditional prime Minister of Lebmpakom, Ijiman, Ugep, Chief Sylvanus Uno Ubna chief Samuel Ekuta of Letampankom; Chief Otu Onen Eyong of Letampankom; Mr. Ottoh Obono-obta and Emmanuel Hastings (Secretary) to assist him in the onerous responsibility of reconciling the parties and settling amicably the issues in controversy between them.
3. The committee visited and interviewed the Obot Kepon of Letekom, Ikpakapit, Obol Bassey Okoi and Solomon Ubi Edu (Claimant); Patrick Otu Ubi (mni) (Defendant).
4. The Parties recognize and fully appreciate the leave granted the Mediator by the Honourable Court to intervene and peacefully
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resolve the issues in controversy between the parties in the suit aforesaid.
IT WAS THEREFORE RESOLVE AS FOLLOWS:
1. The claimant, Mr. Solomon Ubi Edu is recognize the henceforth accorded the title of the Leader of the Ubi Edu Family of Letekom of Ikpakapit, Ugep, Yakurr Local Government Area of Cross River State of Nigeria.
2. The claimant solemnly and sincerely from the bottom of his heart regrets his mistaking in instituting suit No. HUG/31/2010 against the Defendant who is his Nephew.
3. The claimant implores the Defendant, Mr. Patrick Otu Ubi (mni) to forgive and forget.
4.The Defendant acknowledges the tremendous contributions towards his education from Secondary School to the University made by the Claimant and declared that the Claimant shall continue to remain his “Father? and benefactor.
5. The Claimant, Mr. Solomon Ubi Edu resolved to withdraw Suit No. HUG/31/2010 from the High Court of Justice, Ugep on the next adjourned date of the matter which is Wednesday the 16th day of May, 2012, and regrets all inconveniences his action or inaction may have caused members of the Family.
6. It was resolved that the
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property (an uncompleted storey Building Situate along the Ikom-Calabar Highway, Covent Village, Ugep) which is the subject matter of suit No.HUG/31/2010 be recognized, kept and held as memento in honour of the memory of the Benefactor of the Ubi Edu Family, late Ete Out Ubi Edu in recognition and appreciation of his tremendous and immense contribution towards the development of the said family.
7. The claimant, Mr. Solomon Ubi Edu hereby handover the management of the said building to the Defendant (hereinafter to be called and referred as Chief Otu Ubi Edu’s House) to the Defendant Mr. Patrick Otu ubi, mni.
8. The claimant, Mr Solomon Ubi Edu undertook to restore and promote the respect and brotherly love hitherto existing in the Ubi Edu Family and to this end the family shall convene and regularly hold meetings with their sons and daughters.
See pages 61 – 63 of the record
Consequent whereupon, on October 31, 2012, the Court below delivered the ruling in question to the following effect:
”It is a comprehensive masterpiece complete with a resolution and schedule/addendum as well as list of witnesses and they are 28 who witnessed the
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signing festival. Indeed a classic in its own right. A colourful galaxy of 28 wise men including a Traditional Prime Minister could not have been wrong. They could not have offered themselves for want of gainful engagement.
This reminds me of a catchy caption in a restaurant that this food must be good, ten thousand flies would not have been wrong. The difference is that those wise men were no flies but Iroko and caterpillar of Ugep earth shakers fame.The claimant and three of his sons featured prominently. The schedule is duly signed by the Mediator, Barrister O.O. Obla.
The transaction was read and interpreted into Yakurr. All the parties perfectly seemed to understand before endorsing. Paragraphs 2 and 3 of the schedule refer. The claimant volunteered to thumb print. It was his option. Paragraph 4 of the Schedule speaks and speaks in eloquent Clarity.
The general acceptance, arrival and restoration of peace were signed, sealed and delivered by the ritual of water drinking and sprinkling of the same on the palms.
Paragraph 8 of the Schedule completes the good news thus:
“This act of the hitherto detractors or
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antagonists drinking from the same cup of water symbolized reconciliation and sheathing of sword under the tradition and customary law of Yakurr’.
The last, final and most determinant of it all was the resolution of the claimant to withdraw the suit from the Court.
Not taking chances or anything for granted, which is not in my belief system and idiosyncrasy, I have taken a second critical look at the terms of settlement proper. It is duly endorsed by the claimant, Defendant and the mediator. The chief witness to this act is obot Eyong Jarvis who himself did his own endorsement.
I am wheretofore, satisfied and convinced that a terms of settlement in its highly concentrated and undiluted philosophy was voluntarily and with ad idem consensus arrived at by the parties, this I find and hold, I stand by them till the contrary is proved.
And so the latter day seeming dissenting voice in the settlement orchestrated by a junior son of the claimant, Solomon Ubi Edu Jnr. of all people is not and can never be a forensic contrary but a lazy afterthought blowing in the side winds after the terms of settlement was duly signed and filed. Besides, it
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is customary that a junior son can neither be heard against nor uproot what his senior had planted. I jettison his so called dissenting voice.”
Pages 108 & 109 of the Record
Instructively, by way of a preliminary objection, the Respondent raised four issues in the written address thereof for determination, viz:
1. whether this case does not constitute abuse of the legal process.
2. Whether the respondents have locus standi to bring this action not having sought leave of concert to substitute ?the original claimant”
3. Whether the respondents are not stepped from bringing this action, judgment having been delivered on the mater (sic)
4. whether this Court lacks the jurisdiction to entertain this matter.
See pages 111 – 113 of the record.
Having reviewed the record vis-a-vis the submissions of the learned counsel to the respective parties, the Court below made some far-reaching findings in the vexed ruling to the following effect:
Upon being served with the processes herein the defendant filed a preliminary objection contending that the issues herein careers judicata (sic) the present consent judgment.
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I must remind us hence that I am a Judge in the High Court of Cross River State just like Hon. Justice M. Edem who entered the consent judgment. There is no allegation that the judgment is a nullity to clothe me with jurisdiction to set it aside. As stated above, Hon. Justice Edem duly considered the objection of the claimants done in HUG/31/2010 before we entered the consent judgment. I have no jurisdiction to review that ruling. A party aggrieved by that judgment has his remedy in an appeal.”
Instructively, it is an established principle, that once a judgment or order is proven to be a nullity, it can be set aside ex debito justiciae by the Court which made the judgment or order. See SKEN CONSULT NIGERIA LTD. Vs. UKEY (1981) 1 SC 6; ONYEDIBE Vs. MADUEKE (2012) ALL FWLR (PT. 630) 1342 @ 1349.
Undoubtedly, in the instant case, the Appellants, allegations were predicated substantially on fraud and misrepresentation, which if proved would have the effect of annulling the consent judgment in question, yet, the Court below in its wisdom held in the vexed ruling thereof thus:
“There is no allegation that the judgment is a nullity to clothe me with
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jurisdiction to set it aside.?
See page 239 lines 19 – 21 of the record.
As postulated above, the vexed ruling was predicated upon the Respondent’s preliminary objection to the competence of the suit. The said objection, by way of a motion on notice, is contained at pages 103 – 106, and 111 – 113 of the record. On the other hand, the Appellants’ reply thereto is contained at pages 161 – 164 and 167 – 175 of the same record.
Respondent raised a total of four issues in the [Applicant’s] written address thereof, viz:
1. whether this case does not constitute abuse of the legal process.
2. whether the respondents have locus standi to bring this action not having sought leave of Court to substitute the ongoing dormant
3. whether the respondents are not stopped from bringing this action judgment having been delivered on the mater (sic)
4. whether this Court lacks the jurisdiction to entertain this matter.
See page 111 of the record.
Ironically, however, the Court below in its wisdom failed to address the above threshold issues that the Respondent passionately urged upon it to determine in the preliminary objection
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thereof. Not surprisingly, the Respondent raised as a second threshold issue in the brief thereof to the effect:
”Whether the Appellants who not parties in HUG/31/2010 for which consent judgment was delivered have the locus standi to apply for the setting aside of the judgment without first applying for leave to substitute the original party non deceased.”
Hence, flowing from the above postulations, it?s obvious that the failure by the Court below to address those salient threshold issues on the merits has resulted in denying the respective parties the right to fair hearing in the case. And it?s the law, that such an irregularity resulting in a blatant denial of fair hearing to any party renders the entire proceedings of the Court a nullity. see OKOYE Vs NIGERIA CONSTRUCTION COY. LTD. (1991) 6 NWLR (pt. 1999) 511 @ 594. MOHAMMED V SOLA WONMI (1990) 2 NWLR (PT. 133) 458 @ 485; NWOKORO VS. ONUMMA (1990) 3 NWLR (PT. 136) 22 @ 31.
In the circumstance, the issue No. 2 ought to be, and it?s hereby, resolved in favour of the Appellants.
?ISSUE NO.1
The first issue raises the vexed question of whether or not the purported
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consent judgment in this case HUG/30/2013 is not a nullity on the face thereof, thereby entitling the Court below to set it aside, being a Court of coordinate jurisdiction.
As alluded to above, it’s a trite fundamental principle, that once the judgment or order of a Court is a nullity, the party who is affected by such judgment or order is entitled, ex debito justiciae, to have it set aside by the Court of competent jurisdiction. See ONYEDIBE vs MADUEKWE (2012) ALL FWLR (PT.630) 1342 @ 1349; SKEN CONSULT NIGERIA LTD, VS. UKEY (1981) 1 SC 6; YAKUBU VS. GOVERNOR OF KOGI STATE (1997) 7 NWLR (PT. 571) 66 @ 71; SACHIA VS. KWANDE LOCAL GOVERNMENT COUNCIL (1990) 5 NWLR (PT. 152) 551.
In my considered opinion, having already resolved the second issue in favour of the Appellants, there is no gain-saying the fact, that the first issue has become a sheer academic exercise and rather spent. It is obvious from the record, as alluded to under issue No. 2, that the failure of the Court below to hear the case on the merits has amounted to a denial of the right to fair hearing to which the Appellants were entitled under Section 36 (1) of the Constitution of the
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Federal Government of Nigeria 1999 as amended. Consequent where upon, the totality of the proceedings of the Court below are rendered a nullity and liable to be set aside. See OTAPO VS. SUNMONU (1987) 2 NWLR (Pt.58) 587; WILSON vs. A-G OF BENDEL STATE (1985) 1 NWLR (Pt.4) 572; OJENGBEDE vs. ESAN (LOJA-OKE) (2001) LPELR- 2372 (SC); (2001) 12 SC (Pt. 11) 1. In the circumstance, the only viable option left to the Court is to remit the case to the Court below for hearing on the merits by a different judge. Thus, the issue No. 1 is hereby resolved against the Appellants.
Hence, in the circumstance, having resolved the second issue in favour of the Appellants, the appeal ought to be, and it?s hereby, adjudged to have partially succeeded, and it is hereby so allowed in part.
Consequently, the case (No. HUG/30/2013) is hereby remitted to the Chief Judge of Cross River State to reassign same to another judge of the State High Court for hearing on the merits.
Parties shall bear their respective costs of litigation.
Other Citations: (2016)LCN/8987(CA)
