COVALENT OIL & GAS SERVICES LTD & ANOR v. ECOBANK (NIG) PLC & ANOR (2021)

COVALENT OIL & GAS SERVICES LTD & ANOR v. ECOBANK (NIG) PLC & ANOR

(2021)LCN/15135(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/A/501/2013

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

1. COVALENT OIL & GAS SERVICES LTD. 2. FELSHADE INTERNATIONAL LTD. APPELANT(S)

And

1. ECOBANK NIG PLC. 2. THE CHIEF REGISTRAR, HIGH COURT OF FEDERAL CAPITAL TERRITORY RESPONDENT(S)

RATIO

WHAT ARE INHERENT POWERS OF THE COURT

Now, inherent powers of the Court are those innate powers invoked by the Court to ensure the smooth running of the machinery of justice in order to curtail abuse, and stamp its authority where necessary. They have constitutional backing in Section 6(6) (a) of the 1999 Constitution, as amended. They are what one may call second nature powers. See ARUBO V. AIYELERU & 5 ORS supra. PER MOHAMMED MUSTAPHA, J.C.A.

WHETHER A COURT CAN SIT ON APPEAL OVER ITS OWN JUDGMENT OR REVIEW THE JUDGMENT OF A COURT OF CO-ORDINATE JURISDICTION

As a general rule, the starting point is that a Court cannot sit on appeal over its own judgment or review the judgment of a Court of co-ordinate jurisdiction, that is settled law. See Akporue v. Okei (1973) 12 SC 137, Waghoreghor v. Aghenghen (1974) 1 SC 1 and Koden v. Shidon (1998) 10 NWLR (pt. 571) 662. Having said that, there are however situations where the Court is permitted to exercise jurisdiction, to set aside its own judgment or the judgment of a Court of co-ordinate jurisdiction. This includes, where the judgment is entered in default of the defendant’s appearance or in default of pleadings; where the judgment was obtained by fraud; where the judgment breached the fundamental right of a party; and where the judgment will work injustice on one of the parties; See U.B.A. Plc v. Ajileye (1999) 13 NWLR (pt. 633) 166; Okafor v. A.G. Anambra State (1991) 6 NWLR (pt. 200) 659 and LSDPC v. Adeyemi-Bero (2005) All FWLR (pt. 252) 486 @ 503. 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 V. UKEY (1981) SC 6. A fortiori a person whose interest is affected by such decision can come to Court without much ado to have it set aside ex debito justitiae by the same Court. See EGBUZIEM v. NRC (1994) 3 NWLR (pt. 330) 23 @ 33. Furthermore, in setting aside a void order or judgment it does not matter 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 other. 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. PER MOHAMMED MUSTAPHA, J.C.A.

WHEN CAN AN ACT BE SAID TO BE IMPOSSIBLE

An act is said to be impossible, in plain parlance, when it cannot be done, as it is beyond the implementation of an average human being applying average strength and dexterity. See KALU v. ODILI 5 NWLR (PART 240) PAGE 130; UBN V. FAJEBE FOODS (1994) 5 NWLR (PART 334) PAGE 325 and SOYANWO V. AKINYEMI (2001) 8 NWLR (PART 714) PAGE 95. PER MOHAMMED MUSTAPHA, J.C.A.

POSITION OF THE LAW ON THE NATURE OF DEFECT THAT WOULD RENDER A DECISION INVALID

As held by the Supreme Court in HERITAGE BANK LTD V. BENTWORTH FINANCE LTD supra, the kind of defect that would render a decision invalid must be one that raises the issue of substantive jurisdiction, i.e., where the issue of jurisdiction raised is vested statutorily in the Court, but where the issue raised is merely whether a process was filed properly or not in the course of proceedings, then such an issue is secondary because it is procedural and not substantive jurisdiction. The former can be waived, and the latter not. PER MOHAMMED MUSTAPHA, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of the Federal Capital Territory, Abuja by Hon Justice A. S Umar on the 7th of June, 2012, setting aside its orders registering the judgment of the Lagos State High Court, by Hon Justice Ishola, in LD/14/25/2009 delivered on the 29th of September, 2009.

Dissatisfied with the said ruling, the Appellants appealed by a notice of appeal dated the 8th of June, 2012; the record of appeal was transmitted, out of time, on the 24th of June, 2014, but was deemed properly filed on the 19th of February, 2018. The Appellants’ amended notice of appeal was filed on the 15th of April, 2015, but deemed properly filed on the 19th of February, 2018 on the following grounds shorn of their respective particulars:
GROUND ONE:
The learned trial Judge erred in law when he held that the judgment of the High Court of Lagos State made on the 29th day of September, 2009 in Suit No.: LD/1425/2009 and registered as a Judgment of the High Court of the Federal Capital Territory on the 15th day of December, 2010 is an Interlocutory Judgment and as such, compliance

with same is dependent on and should necessarily abide by a further pronouncement in a Final Judgment.
GROUND TWO:
The Learned trial Judge misdirected himself when he held in part that since there was no specific pronouncement by his brother Judge Ishola J., of the High Court of Lagos State in his Order in Suit No.: LD/1425/2009 stating the specific sum amounting to “interest”, the Plaintiff/Appellants were not entitled to the interest or cost of execution in Lagos State sought to be enforced.
GROUND THREE:
The Learned trial Judge misdirected himself when he decided in part that the fact of the pendency of Suit No. LD/1425/2009 at the High Court of Lagos State and the Plaintiffs/Appellants’ failure to disclose same in its Motion Ex-parte seeking to register the Order in suit No.: LD/1425/2009 as a Judgment of the High Court of the Federal Capital Territory, amounted to an abuse of Court process and concealment of material facts requiring the setting aside of the Judgment so registered.
GROUND FOUR:
The Learned trial Judge erred in law when he ordered in his Ruling, the performance of impossible acts for the release of the

Applicant’s Bank Drafts – which at the time of the Order, were no longer existent as well as the return of any goods, chattels and items belonging to the Applicant in the custody of the Appellants when it was clear from evidence before him that the neither the Court bailiffs nor the Appellants took any such goods from the Respondent during execution.
GROUND FIVE:
The learned trial judge erred in law when he considered the 1st Respondent’s Motion on Notice dated 10th February, 2012 seeking to set aside the registration -Judgment of the High Court of Lagos State and granted the reliefs sought thereof on the 29th day of September, 2009 when, ipso facto, the said application was incompetent thus robbing the lower Court of the requisite jurisdiction to entertain same.

From these grounds, the following issues were formulated on behalf of the Appellants by Bayo E. Adetomiwa Esq., of counsel for the Appellants in the brief filed on the 4th of April, 2018:
ISSUE I:
Whether the lower Court was right to have set aside the registration of the Consent Judgment of the High Court of Lagos State in Suit No.: LD/1425/2009 on the ground

that being an ‘Interlocutory’ Judgment, the orders made therein are not executory and enforceable until a final pronouncement is made in a Final Judgment. (Distilled from Ground 1 of the amended Notice of Appeal).
ISSUE II:
Whether the lower Court has the jurisdictional competence to review the decision of a Court of coordinate jurisdiction (i.e., High Court of Lagos State)? AND whether the lower Court was right when it held that the Appellants were not entitled to interest on the Judgment sum as directed in the Consent Judgment of Lagos High Court in Suit No.: LD/1425/2009, or cost of executing same, until the final determination of the Suit. (Distilled from Ground 2 of the Amended Notice of Appeal).
ISSUE III:
Whether the lower Court was not wrong in setting aside its own orders made on the 15th day of December, 2010 which registered the interlocutory judgment of the High Court of Lagos State in Suit No.: LD/1425/2009, dated the 29th September, 2009 and the execution of same on grounds of abuse of Court processes and concealment of material facts. (Distilled from 3 of the Amended Notice of Appeal).
Alleged abuse of process

ISSUE IV:
Whether having regard to the circumstances of this matter, the appellants can be legally compelled to do an impossible act. (Distilled from Ground 4 of the Amended Notice of Appeal).
ISSUE V:
Whether the lower Court did not err in law when it entertained and granted an otherwise incompetent Application. (Distilled from Ground 5 of the Amended Notice of Appeal).

In response, the following issues were formulated for determination by Ime Edem Nse Esq., of counsel for the 1st Respondent, in the brief filed on the 18th of September, 2019 but deemed properly filed on the 21st of January, 2012:
ISSUE FOR DETERMINATION
1. Whether considering all the facts and circumstances of the Appeal, particularly the pendency of Suits No.: LD/1425/09 & M/774/2010 amongst others and applications therein, the non-disclosure and suppression of prior enforcement actions thereon, joinder of issues on interest and cost element, at the time of the Registration of the LSHC Judgment at the Lower Court, the Lower Court was right, when it ruled to stay further execution and enforcement and to set-aside the enforcement

Orders granted on 09 January 2011? (Ground 1, 2 and 3)
2. Whether the Lower Court’s orders in setting-aside the enforcement orders when pertain to a monetary Judgment amount howsoever to an “impossible act” and thus legally impossible? (Ground 4)
3. In light of the decision of the Supreme Court in Heritage Bank Limited v. Bentworth Finance (Nigeria) Limited as well as Appellant’s response to the 100212 Set Aside Motion without complaint, could the aforesaid Motion be said to be howsoever incompetent containing on the face of it, the name of Counsel who signed same as well as signature of the said counsel? (Ground 5)

The 2nd Respondent did not file any brief. The appeal will be determined on the issues formulated for the appellants

The 1st Respondent filed a motion for preliminary objection on the 18th of September, 2019, pursuant to Order 10 Rule 1, Order 6 Rule 1 and Order 7 Rule 2(1) of the Court of Appeal Rules 2016 and the inherent jurisdiction of this Court.

The application which is supported by 7 paragraph affidavit has LHSC1 and COA1 attached as exhibits. The application is for an order of this Court dismissing or

striking out this appeal in limine, on the ground that it is academic, because it claims, the substratum of the suit at the lower Court is extinguished, as it has been discharged and set aside by the Lagos High Court in its judgment; or in the alternative strike out grounds 1 and 2 of the appellants grounds of appeal on the ground that the said grounds do not flow from the ruling of the lower Court; and also striking out issues one and two of the appellant’s issues for determination and the issues thereof as incompetent.

The preliminary objection is argued in the 1st Respondent’s brief at pages 8 to 14.

In response, the Appellant filed a five-paragraph counter affidavit on the 21st of January, 2012 with the notice and grounds of appeal in suit No LD/142/09 filed on the 3rd of April, 2019 attached as exhibit.

The response to the preliminary objection is in the Appellants’ reply brief filed on the 21st January, 2012.

PRELIMINARY OBJECTION:
It is submitted for the 1st Respondent that the appeal can no longer be maintained because it is academic, given that the expressed intendment of the suit at the lower Court leading to this

appeal is extinguished. See ADEFULU & ORS V. OYESILE & ORS (1989) LPELR-91-SC.

That the Appellants’ grounds one and two in the amended notice of appeal do not derive or flow from the decision of the lower Court and are therefore incompetent.

On ground one; it is submitted that the judgment sought to be enforced made no provision for, and did not contemplate the issue of interest and costs which the Appellants purport to enforce; and it is for these reasons that the Appellants’ ground one is incompetent and does not derive from the decision of the lower Court.

Ground two; that the Appellants’ complaint in its ground 2 is that the lower Court misdirected itself when it held that there was no specific finding by the Lagos High Court stating the specific sum amounting to interest, and so the appellants were not entitled to interest or cost of execution in Lagos state sought to be enforced.

That the trial Court found that no specific sum amounting to interest was stated in Ishola J.’s orders, and that since the judgment was based on consent, containing the terms on which the judgment was entered, it ought to have contemplated the interest, if the parties wanted to, but they didn’t.

That as a result, the Appellants’ ground two is incompetent for not flowing from the decision of the trial Court. See C.C.B. PLC V. EKPERI (2007) 3 NWLR part 1022 page 509 and AKIBU V. ODUNTAN (2000) 13 NWLR part 685 page 446.

That if the Court agrees that ground one and two are incompetent for not flowing from the judgment of the trial Court, then issues one and two which are derive from grounds one and two are bound to be struck out for having been contaminated by the defective grounds.

It is submitted for the appellants in reply to the preliminary objection that while an appeal is lodged against a decision of a trial Court, that decision is not final, until the judgment is conclusively determined. See ADAM III V. OKOHO (2008) ALL FWLR part 415 page 1732.

That the effect of filing a notice of appeal is to initiate the appeal process before the appellate Court, and the notices of appeal filed on the 5th and 2nd of April, 2019 continued the action. See OREDOYIN V. AROWOLO (1989) 4 NWLR part 114 page 172; and also, that on the 2nd of April, 2019, the appellants filed an application for stay still pending before the Lagos

State High Court in respect of the 29th of March, 2019 judgment; NIGERIAN BOTTLING CO. PLC & ORS V. ALH V. D. A. BURAIMOH (2006) 6 NWLR part 976 page 387.

That the consent judgment has not been vacated, as it is alive, by reason of the appeal at the Court of Appeal Lagos.

On the incompetence of the grounds of appeal, it is submitted for the appellants that contrary to the 1st Respondent’s submission even the trial Court explained the interlocutory nature of the consent judgment.

That if the interlocutory terms did not envisage an interest component, the terms ‘”immediately” and “interest yielding” would have been absent from the wordings of the consent judgment. See DANGANA V. USMAN (2013) 6 NWLR part 1349 page 50.

That the wordings of the ground of appeal do not have to state the wordings of the decision complained of verbatim. See IKWEKI & ORS V. EBELE & ORS (2005) 11 NWLR part 936 page 397.

RESOLUTION OF THE MOTION OF PRELIMINARY OBJECTION:
I have carefully gone through the motion, the affidavit in support and the exhibits attached, as well as the counter affidavit and the exhibit attached. I have gone through arguments, both

for and against the application in the Respondent’s brief and the reply brief, leading me to arrive at the conclusion that the intention of the Appellants in filing the suit at the lower Court leading to this appeal is clearly expressed in the Appellants’ affidavit in support of the motion to register the judgment in the Abuja High Court, at paragraphs 3.1, 3.2, 3.4 and 3.6. They read as follows:
3.1. “In pursuance of Interlocutory Terms of Settlement filed on behalf of the parties to suit No.: LD/1425/2009, the High Court of Lagos State, Coram the Honourable Justice Ishola sitting at Court 21 of the High Court of Lagos State delivered judgment on the 29th day of September, 2009, by which it directed the judgment debtor herein – Oceanic Bank International Plc – to transfer the sum of N280, 000,000 (Two Hundred and Eighty Million Naira) standing at that time to the credit of Felshade’s account with Oceanic Bank into an interest-yielding account to be jointly held by Messer. Dada Awosika & Lanre Olaoluwa, solicitors to the judgment creditors. A copy of the interlocutory terms of settlement and a certified true copy of the aforesaid judgment

are herewith attached as Exhibit DO-1 and DO-2.
3.2. “Despite being served with the said judgment of the High Court of Lagos State, the judgment debtor failed to comply with the orders therein. The judgment creditors were therefore constrained almost a whole year after the judgment, to seek the leave of the Lagos State High Court for the issuance of a Writ of Fieri Facias (fifa) in a bid to recover the judgment debt.
3.4. “Being discontented with the failure of the judgment debtor to satisfy the judgment debt, the judgment creditors hereby seek to attach assets known to belong to the judgment debtor at its offices situate at the FCMB building, Central Area, Wuse, Zone 6, Area 7 Garki and Wuse II, Abuja from which we believe the judgment debt can be satisfied.
3.6. “I am informed by Bayo Omole of Counsel of the Judgment Creditors at a briefing in our chamber at 4:32pm on Monday 08 November, 2010, whom I verily believe, that it is required that the judgment be registered in the High Court of FCT, Abuja to enable the judgment creditors levy execution on the assets of the judgment debtor to satisfy the judgment debt within the jurisdiction of this Honourable Court.

It is clear that the Appellants had in mind the enforcement of the interlocutory judgment of the Lagos State High Court when they instituted proceedings at the trial Court in Abuja; the same interlocutory judgment was discharged and set aside on the 29th of September, 2010 by the Lagos State High Court in its final judgment, thus pulling the rug off the feet of the appellants.
With this development, notwithstanding the vehement protestations of the Appellant, one cannot help but agree with learned counsel to the 1st Respondent, that the entire essence of the Appellants’ suit, and as a matter of fact this appeal, has become academic and needless in the circumstances.
The decision in ADEFULU & ORS V. OYESILE & ORS supra cited in support of this view is apt; I do not see the logic, much less sense in the contention on behalf of the Appellant, that the same decision supports the Appellant position. It does not in my opinion. See ATT GEN OF THE FEDERATION V. ALL NIG PEOPLES PARTY (2003) 18 NWLR part 851 page 182.

The preliminary objection succeeds; the appeal is dismissed as a consequence. Since the prayers are in

the alternative, having granted the first order it is needless to proceed to the second. What needs to be done now is to determine the appeal in case I am wrong.

ISSUES ONE AND THREE:
– Whether the lower Court was right to have set aside the registration of the consent judgment of the High Court of Lagos State in suit No LD.1425/2009 on the ground that being an interlocutory judgment, the orders made therein are not executor and enforceable until final pronouncement is made in a final judgment.
– Whether the lower Court was not wrong in setting aside its own orders made on the 15th of December, 2010 which registered the interlocutory judgment of the High Court of Lagos State in suit No LD/1425/2009, dated the 29th September, 2009 and the execution of same, on grounds of abuse of Court process and concealment of material facts.

It is submitted for the Appellants that given the character of the consent judgment, the orders made therein are enforceable in itself, such as would not require a final judgment of the trial Court.

That consent judgment is executed and enforceable immediately, upon the fulfillment of the requirement for

registration at the FCT High Court and therefore need not to have been set aside by the trial Court. See OKOYA V. SANTILLI (1990) 2 NWLR part 131 and AKINSANYA V. UBA LTD (1986) 4 NWLR part 35; and that regardless of whether they are interlocutory or final must be obeyed. See IBRAHIM V. EMEIN (1996) 2 NWLR part 430 page 333, APGA V. SENATOR CHRIS ANYANWU (2014) NGSC 2.

That from the records, there is no appeal against the decision of the Lagos High Court, this means that the agreement of the parties, entered as judgment of the Court ordering the payment of N280, 000,000, into an interest yielding account is final.

Learned counsel referred the Court to SPM LTD V. ADETUNJI (2009) 13 NWLR part 1159 page 647, and contended that it is not the nomenclature ‘interlocutory terms of settlement’ that matters, what counts is the intent and spirit of the terms of the consent judgment.

That the lower Court’s decision setting aside its previous orders made on the 15th of December, 2010 on the grounds of abuse of Court process and concealment of facts is erroneous. See SARAKI V. KOTOYE (1992) 9 NWLR part 264 page 156, R- BENKAY NIG LTD V. CADBURY NIG PLC (2012) 9 NWLR part

1306 page 596 and CENTRAL BANK OF NIG V. SAIDU H. AHMED & ORS (2001) 18 NWLR part 724.

That to constitute abuse, the multiplicity of suits must have been instituted by one person on the same set of facts in order to achieve the same purpose.

That suit No. FCT/HC/FJ/23/2010 was filed by the Appellants at the lower Court for the purpose of registering and enforcing the outstanding judgment sum on the subsisting consent judgment of Lagos high Court, and as far as there is no pending appeal against the said judgment and no stay of execution, the judgment of the High Court of Lagos State delivered on the 29th September, 2009 remains valid. See CHEMICALS NIG LTD V. KGAA (1993) 1 NWLR part 269.

That the applicable law governing registration of judgments obtained in another jurisdiction is the Sheriffs and Civil Process Act and the rules of Court, once their requirements are met, such judgment becomes the judgment of the Court in which it is registered, with the effect of being enforceable immediately; as such the judgment registered by the appellants at the lower Court became immediately enforceable and therefore not an abuse of Court process.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

That the substantive suit at the High Court of Lagos State is for the recovery of the principal sum of N280,000,000.00 while the suit at the lower Court in FCT/HC/FJ/23/2010 was for the recovery of the interest due on the principal sum awarded to the appellants and cost of execution.

That the question of abuse does not arise because the Appellants were within their rights and also, that the Appellants did not conceal material facts as held by the lower Court. See W.A.P.C. PLC V. ADEYERI (2003) 12 NWLR part 513 page 533.

That the appellants placed the material facts as required by Section 107 of the Sheriffs and Civil Process Act, and those facts were deposed to in the affidavit supporting the motion ex parte for registration and also, that the appellants disclosed that the judgment was interlocutory, executed in part and that there was no appeal. Thus, the material facts that could stop the registration of a judgment would be a pending appeal or a motion for stay of execution, neither of which exists in the instant case. See VASWANI TRADING CO. V. SAVALAKH (1972) 12 SC.

It is submitted for the 1st Respondent in response that the appellants’ action

commenced by ex parte motion for registration is an abuse of Court process, as found by the trial Court, given the pendency of suit No LD/1425/2009, as a consequence the setting aside was in order.

That not only was LD/1425/09 pending at time of registration of the Lagos State High Court judgment but the judgment sought to be executed was an interlocutory judgment of the Court which could be enforced by the Lagos Court, capable of making the necessary and consequential orders as would give effect to the interlocutory judgment in the nature of their reliefs before the trial Court; AGWASIM & 1 OR V. OJICHIE & 1 OR (2004) 10 NWLR part 882 page; and that although the appellants contend in their brief that they did not abuse the process of Court, the evidence at the trial Court showed the contrary.

That the lower Court set aside its prior attachment orders because material facts were suppressed in obtaining same; the suppressed and non-disclosed facts in the application contradict the provisions of the Sheriffs and Civil Process Act, Section 107, particularly the requirement that the amount which the process is proposed to be issued is actually due and unpaid.

That the Appellants did not state that the 1st Respondent challenged and disputed the interest element of the interlocutory judgment and the alleged cost of N8,000,000.00 and the interest of N55,355,616,44 in LD/1425/09.

RESOLUTION OF ISSUES 1 AND 3:
The Appellants’ application of the 25th of August, 2010 which was pending before the lower in LD/1425/2009, at the point of registration of the judgment of the lower Court, has as its primary prayer the same relief as the appellants’ relief two in the ex parte application seeking registration, i.e., the expenses of execution; the only difference being the claim of N55,355,616.44 as outstanding judgment sum and N8,000,000.00 as outstanding cost of the execution of the judgment of the Lagos high Court.

Pages 175 to 178 of the record of appeal reveals that the Appellants through their counsel presented their estimation of the interest, with cost and fees due owed by the 1st Respondent, demanding payment, as a condition necessary for the release of the properties belonging to the 1st Respondent. The letter was dated the 1st of September, 2010, and addressed to the deputy sheriff of Lagos.

This letter was made an issue by the 1st Respondent’s motion also of the 1st September, 2010; see pages 179 to 200 of the record of appeal, in LD/1425/2009. The essence here is that the 1st Respondent’s motion joined issues with the Appellants on the outstanding costs and expenses.

Issues have clearly been joined by the appellant and the 1st Respondent on the N55,355,616 and N8,000,000.00 that much is clear even from the fact that the Appellants’ letter of the 1st of September, 2010 was attached to the 1st respondent’s further affidavit in support of the motion of the 1st September, 2010 at pages 175 to 178 of the record of appeal. That surely means that the Court in LD/1425/2009 was required to resolve those issues and it is during the pendency of those issues that the suit was initiated at the lower Court.

second nature powers. See ARUBO V. AIYELERU & 5 ORS supra.

The Lagos High Court is constitutionally vested with the powers to make the orders sought by the appellants from the lower Court, and the only conceivable reason for not making the application in Lagos and making it instead in Abuja is because it could not do that in the face of the obvious facts available before the Lagos Court.

The record also shows that the Appellants commenced suit No. M/774/2010 on the 13th of September, 2010. The ruling was delivered on the 14th of June, 2011; what this means is that M/773/2010 was pending when the appellants filed the ex parte motion on the 9th of December, 2010.

The reliefs in both, it should be noted, are essentially the same. In M/774/2010, it is the sum of N55,355,616.44 and N8,000,000.00 interest and cost, in the ex parte application, it is the outstanding judgment sum and cost of execution of the Lagos judgment.

It is these facts that led the lower Court to hold that “there was no sufficient disclosure of facts in the affidavit of the claimant” and the consequential setting aside of the ex parte order.

It is difficult in the face of these, to be convinced by the Appellants’ contention that they did not abuse the process of the Court or that the suit was instituted at the lower Court solely to enforce outstanding judgment summon on a subsisting and valid consent judgment of the Lagos Court.

The lower Court set aside its orders of attachment for among other things, suppression of material facts; the Appellants contended they fulfilled all the requirements of Section 107 of the Sheriffs and Civil Process Act, 2004. The Act for the avoidance of doubt provides:
107. “no process shall be issued upon such certificate unless an affidavit is first filed in the Court out of which it is intended to issue such process made by the judgment creditor or by some other person cognizant of the facts of the case, stating –
a) That the amount for which the process is proposed to be issued is actually due and unpaid; or
b) That the act ordered to be done remains undone; or
c) That the person ordered to forebear from doing an act has disobeyed the order, and no process shall be issued for a larger amount than sworn to.”

It is easy in the circumstances to agree with learned senior counsel for the 1st Respondent, that the appellants made no mention of M/774/2010 in their ex parte application and its supporting affidavit, even though the suit was pending on the 9th of December, 2010, having been instituted on the 13th of September, 2010, when the execution proceedings were commenced. That in itself speaks volumes.

These are facts that would have helped the Court in determining whether or not the conditions set in Section 107 of the Sheriffs and Civil Process Act, for the issuance of the ex parte order of 15th December, 2010 were met; alas, they were not disclosed. The trial Court cannot, in the circumstances be faulted for setting aside and discharging both the ex parte order of 15th December and the writ of attachment dated 19th January, 2011.

It is clear from the circumstances of this case, that the lower Court did not in its ruling base the setting aside of the enforcement orders on the belief that the judgment is an interlocutory judgment, for reasons of which compliance would depend on a further pronouncement in a final judgment, as contended for the appellants. This much is clear from the ruling inter alia:

“I have given a literal interpretation to the words used in the terms of settlement and I have neither found a consensual agreement by the parties to the issues of interest and costs nor are they reproduced therein. If anything by the tenor of the said paragraph number 1 of page 2 of the interlocutory terms of settlement, the defendant holds himself to abide by the judgment of the honorable Court with respect to interests and costs. This interlocutory term of settlement, I hold, is a precursor to the final judgment which the defendant holds himself to abide.”

If anything, the decision of the lower Court based its decision on the fact that the judgment sought to be enforced made no provision for the issue of interests and costs which the appellants sought to enforce. So it is, as a matter of fact, the issue of interest and costs that should abide by a final judgment.

It is for these reasons that I now resolve issues 1 and 3 in favour of the 1st respondent, against the appellant.

ISSUE TWO:
Whether the lower Court has the jurisdictional competence to review the decision of a Court of coordinate jurisdiction, specifically,

whether the lower Court was right when it held that the appellants were not entitled to interest on the judgment sum as ordered by the consent judgment of Lagos High Court in suit No LD/1425/09 or cost of executing the orders of Court until the final determination of the suit.

It is submitted for the appellants that the jurisdiction of the lower Court is limited to whether or not the appellants met the requirements of registration without more, but it went further than that and acted ultra vires its powers, as it sat on appeal to review the decision of the Lagos High Court; COLE V. JIBUNOH (2016) 4 NWLR part 1503 page 499 and FBN PLC V. T.S.A INDUSTRIES LTD (2010) 15 NWLR part 1216.

That the attempt by the Court to review a decision of a Court of coordinate jurisdiction is invalid; the High Court of Lagos having expressly mandated the defendant to immediately deposit the sum of N280,000,000.00 in an interest yielding account. That this pronouncement by the Lagos High Court is final and cannot be varied by a Court of concurrent jurisdiction. See ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V. RAYMOND EKWENEM (2009) 13 NWLR part 1158 page 410.

That the issue before the lower Court was specifically the registration of the judgment or setting aside of the registration, as such the lower Court had no jurisdiction to look into or construe the judgment of the Lagos State High Court as it did, and even if it had jurisdiction the ruling was factually incorrect, as the appellants are entitled to the interest as ordered. See NIGERIA GENERAL SUPERINTENDENCE CO. LTD V. NIG. PORT AUTHORITY (1990) 1 NWLR part 129 page 741.

RESOLUTION OF ISSUE TWO:
There is no response on the part of the 1st Respondent on this issue; be that as it may, the issue has to be resolved one way or the other, not least because the issue revolves around jurisdiction.
It is necessary to still find out if the said argument as it stands has merit, regardless of the fact that nothing appears to stands on its way. See TRACTOR & EQUIPMENT (NIG) LTD & ORS v. INTEGRITY CONCEPTS LTD & ANOR (2011) LPELR – 5034 and the decision of the Supreme Court in ECHERE v. EZIRIKE (2006) All FWLR (pt. 323) 1597 at 1608.

As a general rule, the starting point is that a Court cannot sit on appeal over its own judgment or

review the judgment of a Court of co-ordinate jurisdiction, that is settled law. See Akporue v. Okei (1973) 12 SC 137, Waghoreghor v. Aghenghen (1974) 1 SC 1 and Koden v. Shidon (1998) 10 NWLR (pt. 571) 662.

Having said that, there are however situations where the Court is permitted to exercise jurisdiction, to set aside its own judgment or the judgment of a Court of co-ordinate jurisdiction. This includes, where the judgment is entered in default of the defendant’s appearance or in default of pleadings; where the judgment was obtained by fraud; where the judgment breached the fundamental right of a party; and where the judgment will work injustice on one of the parties; See U.B.A. Plc v. Ajileye (1999) 13 NWLR (pt. 633) 166; Okafor v. A.G. Anambra State (1991) 6 NWLR (pt. 200) 659 and LSDPC v. Adeyemi-Bero (2005) All FWLR (pt. 252) 486 @ 503.
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 V. UKEY (1981) SC 6. A fortiori a person whose interest is affected by such decision can come to Court without much ado to have it

set aside ex debito justitiae by the same Court. See EGBUZIEM v. NRC (1994) 3 NWLR (pt. 330) 23 @ 33.
Furthermore, in setting aside a void order or judgment it does not matter 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 other. 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 lower Court cannot be faulted in this case for holding that the appellants abused the process of the Court by filing the ex parte application before it, knowing also that the purported outstanding sum of N55, 355,616.44 and the claimed cost of execution, N8, 000, 000, 00 were live issues pending in LD/1425/09; all in an effort to get from the lower Court, what they could not get from the Lagos High Court.

Another basis for the lower Court arriving at the decision it did is the suppression of facts material to the ex parte application, on whose basis the writ of attachment was issued in the first place, in utter disregard of

Section 107 of Sheriffs and Civil Process Act, particularly with regard to the fact that the interest as well as the cost were challenged by the 1st respondent, and that challenge had not been resolved by the Lagos High Court, where the substantive matter in LD/1425/09 was pending; as well as the refusal to disclose the fact that the 1st Respondent undertook to pay such sum, as the Court may find due and owing by the 1st Respondent to the appellant. See pages 192 to 202 of the record of appeal. All these are material facts that would have assisted the lower Court in arriving at a just decision, but were suppressed and the lower Court was clearly not sitting on appeal over its judgment by setting it aside.

It is for these reasons that I now resolve this issue in favour of the 1st Respondent, against the appellant.

ISSUE FOUR:
Whether, having regard to the circumstances of this matter, the appellants can be legally compelled to do an impossible act.

It is submitted for the appellants that the order of the lower Court on the release of the bank drafts is a situation that is in contrast with the general principles of the extant law, which is that the law does not command the impossible.

That the banks drafts issued were presented, cleared and value received, long before the application was filed. This occurrence renders the order of the Court baseless and unsupported in law. See MCFOY V. UAC (1961) 3 ALL ER 1169 at 1172.

That the lower Court in its ruling went on to order for the return of any goods, chattels and items belonging to the 1st respondent in the custody of the appellants when it was clear from evidence that neither the Court bailiff not the appellants took any such goods from the 1st respondent during execution. See OHAKIM V. AGBASO (2010) 19 NWLR part 1226 page 172.

That the lower Court was wrong to have granted an injunctive relief in respect of a completed act, the consequence of which is that the order will be declared null and void.

It is submitted for the 1st Respondent that the appellants’ assertion as to when value was received by the chief registrar of the Lagos state high Court is factually wrong, because from the affidavit of urgency filed at the lower Court, although the drafts were issued on the 18th of January, 2012, they were presented for value on the 23rd of January, 2012,

during the pendency of the 1st respondent’s application seeking the further execution on the judgment of Ishola J., in LD/1425/09.

That the appellants set out to frustrate and render nugatory the orders of the lower Court in the face of the pending application; that the bank draft is merely an indication that there is a contract for the amount in question to be paid to the bearer of the draft. A transfer of the amount reflected is all that’s needed, from the chief registrar to the 1st Respondent.

RESOLUTION OF ISSUE FOUR:
An act is said to be impossible, in plain parlance, when it cannot be done, as it is beyond the implementation of an average human being applying average strength and dexterity. See KALU v. ODILI 5 NWLR (PART 240) PAGE 130; UBN V. FAJEBE FOODS (1994) 5 NWLR (PART 334) PAGE 325 and SOYANWO V. AKINYEMI (2001) 8 NWLR (PART 714) PAGE 95.
The Order in question is in respect of relief number six, and for the avoidance of doubt it reads:
“An Order for the immediate release of the applicants bank draft in the cumulative sum of N30,220,958.90 issued on the 18th of January, 2012 to the chief registrar of this Court

together with the applicant’s other goods, chattels, and items as may be in the custody of the respondent therein.”
The affidavit of urgency filed by the applicant, at the lower Court is at pages 16 to 20 of the record of appeal. It shows that the bank drafts were issued to the Chief Registrar on the 18th of January, 2012, but were presented for vale on the 23rd of January, 2012, clearly during the pendency of the application by the 1st Respondent seeking an order staying the interlocutory judgment of the Lagos State High Court in LD/1425/09. See pages 21 to 24 of the record of appeal.
The Appellants and the chief registrar are fully aware of this application because the record shows they were served on the 19th January, 2012. See page 18 of the record of appeal. That application as pointed has prayers b) and c) which sought to restrain the 2nd defendant from presenting the said bank drafts for value.
Now, in view of these revelations, it is clear that the presentation, clearing and receipt of value was done with full knowledge of the application and the objective is nothing other to prejudice it. For that reason, the decision in

HRH ALH SULU GAMBARI & 4 ORS V. SAADU BUKOLA (2004) 1 NWLR part 853 page 122 is apt; and I do also agree that the decisions in ADEWALE V. GOV OF EKITI STATE and GOV IMO STATE ANOSIKE supra least apply to this case, because those cases the defaulting actions had already been carried out before the application to restrain were brought, while in this case it all happened during the pendency of the application, in utter disregard. In any event, the bank drafts are nothing more than an agreement or indication that the amount in question is due to whoever presented the draft, the value of which can easily be transferred back and forth as exigencies permit. That being so, the order of the lower Court is in the nature of restorative mandatory injunction as is decided by this Court in GAMBARI V. BUKOLA supra.

It is for these reasons that I now resolve this issue in favour of the 1st respondent, against the appellant.

ISSUE FIVE:
Whether the lower Court did not err in law when it entertained and granted an otherwise incompetent application.

It is submitted for the Appellants on this issue that the 1st Respondent’s motion upon which the order upon

which the consent judgment was set aside is incompetent and ought not to have been granted by the lower Court.

That the endorsement of the 1st Respondent’s motion of the 10th February, 2010 did not indicate the name of the legal practitioner that signed; that this is a major failing in view of the requirement of the law that the Court’s jurisdiction is dependent on the proper initiation of the processes. See MADUKOLU V. NKEMDILIM (1962) 2 NSCC 374 page 379 and SBL CONSORTIUM LTD V. NNPC (2011) 9 NWLR part 1252 page 317.

That the 1st Respondent’s motion of the 10th of February, 2012 shows that even though several names of persons and firms were listed on the face of the motion and the written address, it is still unascertainable who amongst the several names signed the motion.

It is submitted for the 1st Respondent in response that the issue if any is at worst an irregularity which has been waived by the Appellants’ response to the application without complaint; HERITAGE BANK LTD V. BENTWORTH FINANCE NIG LTD and ARIORI V. ELEMO (1983) 1 SC.

That also from the circumstances, the defect if any is simply
an irregularity, as the 1st respondent’s

process could not have been an originating process. See NIG ARMY V. SAMUEL (2013) 14 NWLR part…; that even if the application is defective, the decision of the lower Court should not be disturbed because the appellants have not shown what prejudice they suffered as a result of the Court taking into considerations arguments contained in the motion and written address. See GUARANTY TRUST BANK PLC V. INNOSON NIG LTD supra.

RESOLUTION OF ISSUE FIVE:
Processes of Court are not supposed to be signed by a law firm, without the name of a counsel on the face of such process; that does not appear to be the case in this case, because the motion ex facie was signed by counsel. The grouse here is that the legal practitioner that signed same was not indicated among the list of counsel whose name appears on the process.
As held by the Supreme Court in HERITAGE BANK LTD V. BENTWORTH FINANCE LTD supra, the kind of defect that would render a decision invalid must be one that raises the issue of substantive jurisdiction, i.e., where the issue of jurisdiction raised is vested statutorily in the Court, but where the issue raised is

merely whether a process was filed properly or not in the course of proceedings, then such an issue is secondary because it is procedural and not substantive jurisdiction. The former can be waived, and the latter not.
Now, the question that arises in this case is whether the nature of the defect in the motion could be termed an irregularity that bodes no adverse consequence? The answer to that could, in the circumstances be in the affirmative, because the application is not an originating process, especially as the motion for registration and the application to set aside and stay preceded it, in line with the Supreme Court decision in HERITAGE BANK LTD V. BENTWORTH FINANCE LTD supra.
Besides, as rightly contended by learned senior counsel for the 1st respondent, there is nothing to show that the appellants suffered any prejudice on account of the Court taking into consideration the arguments contained in the motion and written address in support especially when account is taken of the fact that irrespective of the situation, the affidavits before the Court were not affected, in line also with the decision of the Supreme Court in GUARANTY TRUST BANK V. INNOSON supra.

What is needed to make a process valid is for the signature appended to be traceable to a legal practitioner. Be that as it may, the application can still be decided on its merit on the basis of the available affidavits and counter affidavits, especially as the Appellants have not contended otherwise. That being the case, there is no basis for disturbing the findings of the lower Court.

It is for these reasons that I now resolve this issue too in favour of the 1st Respondent, against the Appellant.

Having resolved all the issues that call for determination in this appeal in favour of the 1st Respondent, against the Appellant, the appeal fails for lack of merit, and it is accordingly dismissed. Ruling of the trial Court of High Court of the Federal Capital Territory, delivered on the 7th of June, 2012, by Hon. Justice A.S. Umar is hereby affirmed.

STEPHEN JONAH ADAH, J.C.A.: I read the draft of the judgment delivered by my learned brother MOHAMMED MUSTAPHA, J.C.A.

I agree with the reasoning and the conclusion that the appeal lacks merit. For the same reasons, I do dismiss this appeal for lacking in merit.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance a draft of the judgment just delivered by my noble Lord, MOHAMMED MUSTAPHA, J.C.A., and I am in complete agreement with the lucid reasoning and the impeccable conclusion reached therein that the appeal lacks both competence and merit and therefore, liable to be struck out and or dismissed.

My Lords, once an Appeal or an issue in an appeal is no longer a live issue but at best becomes merely academic, Courts of law are loath to spending their precious and scarce judicial time considering and resolving merely academic questions in their judgments, which are better left for scholars in the Faculties of Law in our Universities to grapple with. Thus, an issue or an appeal becomes merely academic once it is no longer of any utilitarian value either to the determination of the appeal or to the parties one way or the other. Indeed, the law is and has always been that one cannot put something on nothing and expect it to stand. It would definitely collapse. It follows therefore, where an appeal becomes merely academic that ought to be end of the matter and there would

truly be no need to further consider the merit of such an appeal. See Uba Plc V. Dana Drugs Ltd (2018) LPELR – 44103 (CA) per Georgewill J.C.A. See also Wema Bank Plc V. AKS Steel Limited (2018) LPELR – 44549 (CA) per Georgewill J.C.A.; Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 @ pp. 254 – 255.
In Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, the full Court of the Supreme Court per Muhammad J.S.C., had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.”
The instant Appeal clearly has suffered this fate and therefore, as aptly and unassailably contended by the learned senior counsel for the 1st Respondent, it can no longer be maintained given that the expressed intendment of the Suit previously pending before the Court below and leading to this appeal has become extinguished. It should therefore be left to rest in peace and free from the hassles of this moribund appeal without any more utilitarian value to the

parties! See Adefulu & Ors V. Oyesile & Ors (1989) LPELR – 91(SC).

In the circumstances therefore, I hold that the preliminary objection has merit and succeeds in its entirety. In the result, I too hereby strike out this appeal for being incompetent. In the lead judgment by way of completeness and or ex abundandi cautela the Appeal was considered on its merit and dismissed for lacking in merit. I adopt the reasoning as mine and do hereby also dismiss the Appeal for lacking in merit. I too hereby affirm the Ruling of the Court below.

Appearances:

Bayo Adetomiwa Esq., with him, Nafisa Ali For Appellant(s)

Ime Edem Nse Esq. – for the 1st Respondent.
2nd Respondent absent and unrepresented. For Respondent(s)