Prince Syklvester Eweka V. Efese Obanor & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
GEORGE OLADEINDE SHOREMI, J.C.A.
This is an appeal against the Ruling of the Benin High Court of Justice sitting in Benin, Edo State delivered on 21st November 2001 in which the application to set aside the judgment delivered on the 11th day of July, 1997 in favour of the Respondents.
The facts as gathered from the file is that the father of the appellant filed a writ of summons and State of Claim against the Respondents and the Respondents filed their Statement of Defence and in an Amended ‘Statement of Defence the Respondents adduced and counter claim.
Pleadings were settled by one Dr. C.Y.O. Adei Aburime & Company Solicitors. Following the death of A. Aburime of Counsel one S.D.N. Osakwe became the Solicitor to the Respondents.
In the process a motion for substituted service dated 22 June 1994, the Respondents in their affidavit deposed to the fact that the appellant’s counsel had moved out of jurisdiction of the Court and could not be served. As at that date, the Appellant’s father the original plaintiff had died on 12/4/93.
The application to substitute the present plaintiff was served by way of substituted service. The respondents opened their case in the counter claim without the counter claim having been set down for hearing. Judgment of the counter claim was delivered on 11th July 1997.
On 15/12/98 when the appellant became aware of this judgment filed a motion on 15/1/01. A motion praying the court to set aside the judgment dated 11th April 2001 but the court below refused on the ground the was functus officio. This Ruling is contained in page 143 of record.
With this the appellant was dissatisfied and filed the following grounds of appeal
“GROUNDS OF APPEAL
- The decision is against the weight of evidence
2.The learned trial Judge erred in law when he held
“This Court lacks the jurisdiction to grant the motion to set aside the judgment on the Counter Claim of the Defendants, which judgment is on merit of the Counter Claim.”
PARTICULARS ERROR
a. The evidence in support of the Counter Claim was taken in the absence of the plaintiff.
b. The Plaintiff did not cross-examine the Defendant Counter Claimants and their witnesses.
c. The Plaintiff was absent from Court as he was not aware of the hearing date.
Further grounds of appeal will be filed when the records of proceedings are available”
One issue was distilled by the appellant for the two grounds of appeal filed. The issues as distilled reads:
“Whether the learned trial Judge was right to have declined Jurisdiction to set aside the judgment of the counter claim of the Respondent, evidence having been led.”
In his argument the appellant argued that the court below failed to consider the appellant’s affidavit which showed that the original counsel relocated out of Edo State and that the Original Plaintiff died in 1993 before the Statement of Defence was amended to include a counter claim. He pointed out that the medical report confirmed that the Original Plaintiff died on 12/4/93 whereas the amended Statement of Defence to which a counter claim was included is dated 4th May 1995.
He went further to say that the court has an inherent power to set aside its own decision reached out on the merits especially where the judgment is obtained in default of appearance. He cited the following cases amongst others.
NKWOCHA v. OGORUN (2002) 5 NWLR (PT.761) 508
SANUSI v. AYOOLA (1992) 9 NWLR PT. 265
DELTA STATE GOVT. v. OKON (2002) 2 NWLR (PT.252) 665.
He urged the court to allow the appeal, set aside the Ruling of the court below and set aside the default judgment. The Respondent on his side asked whether the court, is competent to set aside its judgment given on merit.
In his argument he said there was no information to court that the Original Plaintiff died. He submitted that where a court makes an order or gives judgment in an action it becomes functus officio and ceases to possess power to vary or review such order or judgment.
Let me refer to the affidavit in support of the motion to set aside especially paragraphs 24 – 32
“24. That I am informed by my counsel, Chief C.O. Ihensekhien (SAN), and I verily believe him that this report by the bailiff was necessary before the said application to serve plaintiff by substituted service could be brought before court.
- That my investigation further revealed that a motion for leave to substitute my name for that of my father was filed, moved and granted by this Honourable Court on’ the 25th day of March, 1995. A copy of the enrolment of order is herein marked as Exhibit ‘E’.
See also page 5 of Exhibit ‘E’
- That the said application was purportedly served on me by pasting the said motion on notice at my family house at no. 11, Oguanogbe Street, Off Plymouth Road, Benin City. The said proof of service filed by the bailiff is herein marked as Exhibit ‘F’.
- That at the material time however, I was in Lagos and when I visited home, I was never informed of any process served on me by pasting service on the wall of No. 11, Oguanogbe Street, Off Plymouth Road, Benin City.
- That again my investigation revealed that the Defendants filed an amended statement of Defence which was again purportedly served on me by the bailiff by pasting, same on the wall of my late father’s house. The proof of service is herein marked as Exhibit ‘G’.
- That neither the application to amend nor the amended Statement of Defence was served on me either personally or by substituted service.
- That before the death of my father, the Statement of Claim in this case had been filed and I herein mark it as Exhibit ‘HH’.
- That I believe that I have a good case in this action.
- That I state most vehemently that at I was never served with any of the processes in this case.”
In the counter affidavit, the respondents deposed thus:
“6. That paragraph 3 of the affidavit in support is false. His father died on or about July, 1994.”
Even if this of the Respondents averment is true (which is not true as shown in the medical Certificate). The judgment was delivered on 11th day of July, 1997 when the original plaintiff was not alive.
There is no gainsaying that both parties argued that as at the time the counterclaim was smuggled into the process, the plaintiff was dead. A dead person ceases to have any legal personality from the moment of his death and as such can neither be sued either personally or in a representative capacity See RE OTUEDON (1995) 4 NWLR PT. 392 AT 655.
There is nothing on record also to show that the appellant was served with any process to enable him be present in court to prosecute his claim or defend the counter claim. The purported substituted service was done after the death of the original plaintiff.
To grant an application to set aside a judgment, the following must be considered.
(a) Whether there had been undue delay in making application to set aside the judgment as to prejudice the party in where favour of the judgment subsist.
(c) Whether the successful party would be prejudiced or embarked upon all order of retrial being made as to render such as course inequitable.
(d) Whether the applicant’s case is manifestly unsupportable.
(e) The conduct of the appellant throughout the proceedings.
See ODOFIN v. OLABAYI (1996) 3 NWLR PT. 435, 126
WILLIAMS & ORS. v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1981) 1 – 2 SC 145.
MOHAMMED v. USENI (1998) 14 NWLR (PT.584) 108
MOMO v. GULF INSURANCE CORPORATION (1975) NMLR 184.
It is trite law that a High Court has inherent jurisdiction to set aside its judgment or order given in any proceedings in which there had been a fundamental defect such as one which goes to the competence of the court. It is trite law that an appellant who is aggrieved with a judgment or order of a High Court given without jurisdiction could either apply to the Court to exercise its inherent jurisdiction to set aside the judgment or order as having been made without jurisdiction and therefore a nullity or appeal to the Court of Appeal. See DANIELS v. WSIGHT ENG. COMM. LTD. (2002) FWLR Pt. 99, 1012.
In this case there was no service on the appellant by what ever standard. Any proceedings conducted without jurisdiction is a nullity.
See AKEEM v. UNIVERSITY OF IBADAN (2003) WNLR PT.829,548;
CONTINENTAL INT. GAERS LTD v. OPEKO (2003) 7 NWLR pt. 820 479
ODU v. AGHO HEMEN (2003) 2 NWLR Pt.804, 355
OJIA v. EJEM (2006) PT. 992 AT 652.
In this case the learned trial Judge erred ‘in not setting aside the judgment on the fact of lack of service of the writ on the appellant and non service of the writ robbed the court of jurisdiction.
See KADZI, IMT. LTD. v. KANO TAMNERY COY. LTD. (2004) 4 NWLR PT. 864
Where there is no service, the fundamental rule of natural justice “Audi alteram partem” is breached.
In the event, the appeal are meritorious and it succeeds and the Ruling and judgment of the court below is set aside and the case is remitted for retrial by another Judge.
I award the cost of N5,000.00 to the appellant against the Respondents ..
Other Citations: (2006)LCN/2135(CA)
