OTOMIEWO v. UKAVWE & ORS (2020)

OTOMIEWO v. UKAVWE & ORS

(2020)LCN/15431(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/AS/410/2013

RATIO

TITLE TO LAND: PARTIES TO BE JOINED IN AN ACTION FOR POSSESSION OR DECLARATION OF TITLE

It is trite law that a plaintiff must join in an action for possession and/or declaration of title, every person who is on the land in dispute. See NZEKWU VS. NZEKWU (1989) 2 NWLR PART 104, PAGE 373 AT PAGE 391, PARAG. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

COMPETENCE OF COURT: WHETHER AN APPELLATE COURT MAY INTERFERE WITH THE REASONING OF THE LOWER COURT IN ARRIVING AT ITS OWN DECISION

The position of the law is that an appellate Court is not bound by the reasoning of a lower Court, in arriving at its own decision. What an appellate Court has to decide in an appeal before it, is whether the decision of the Court below was right and not whether its reasons for arriving at the decision were, and a misdirection not occasioning injustice is immaterial and cannot affect an otherwise unimpeachable decision. Accordingly, it is not every mistake or error in a judgment that will result in an appeal being allowed. It is only when the error is substantial in that it has occasioned a miscarriage of justice that an appellate Court is bound to interfere. See amongst many others, the cases of OJENGBEDE V. ESAN (2001) LPELR-2372(SC); HILLARY FARMS LTD V. M/V MAHTRA (2007) LPELR-1365(SC) and IBULUYA V. DIKIBO (2010) LPELR-1414(SC), (2010) 18 NWLR (Pt. 1225) 627 S.C. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

COMPETENCE OF COURT: WHETHER AN APPELLATE COURT MAY RAISE ISSUES FOR DETERMINATION SUO MOTU

It is apparently against the backdrop of what is expected of an appellate Court in coming to a decision in an appeal, that the said Court is not only allowed in law to formulate an issue or issues for the determination of an appeal (once the issue or issues is/are within the confine/or confines of the grounds of appeal in a given appeal) but also to raise suo motu any issue or issues, it considers pertinent for the resolution of the appeal (and having afforded the parties an opportunity to be heard on the said issue or issues), to determine the appeal on the basis of the said issue or issues raised suo motu. See the case of JUWO V. SHEHU (1992) LPELR-1639(SC). In any case, it would appear settled in law, that it is not in all circumstances that the raising of an issue by a Court suo motu and the Court deciding the same without calling on parties to address it, is fatal to a judgment based on the said issue or issues raised suo motu. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

CHIEF V.E. OTOMIEWO, ChMC., ACIArb. APPELANT(S)

And

MR. DANIEL UKAVWE 2. PASTOR WILFRED O. GIFT 3. MR. DAVIDSON O. ETIKARAN (For Themselves And On Behalf Of Ogbovwan Family Of Ekpan) RESPONDENT(S)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the ruling delivered on 20/2/2013, by the High Court of Justice of Delta State holden at Effurun Judicial Division presided over by Hon. Justice R. D. Harriman (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively). The lower Court in the ruling in question held: “It is therefore easy for me to come to the conclusion that this is not a proper case for me to set aside the judgment of this Court as the requirement for such has not been met by the applicant.”

Consequently, the lower Court dismissed the Appellant’s application dated 22/5/2012 and filed on 23/5/2012, seeking for the setting aside of its judgment delivered on 7/7/2010. The judgment of the lower Court that the Appellant sought to set aside and which the said Court declined to do, was delivered in Suit No: EHC/197/2009 – POLO OBIOMAH AND LUCKY EMASHEMIGHA (for themselves and on behalf of the Ogbovwan Family of Ekpan) V. BENSON MEJOGBAMU AND PERSON UNKNOWN.

The said suit was instituted by the Plaintiffs therein by a writ of summons that issued on 28/5/2009. The Plaintiffs claimed jointly and severally against the Defendants therein, in paragraph 20 of the statement of claim filed on 28/8/2009, as follows: –
“1. A declaration that the plaintiffs are the persons entitled to statutory right of occupancy and or certificate of occupancy in respect of the vast expanse of land including the area in dispute or disputed portion forming the subject matter of this action being, lying and situate at near Tankers’ Garage, off NPA Expressway, Ekpan measuring approximately 6 acres.
2. The sum of N10m (Ten million Naira) being general damages for trespass committed by the defendants and or their agents, servants, privies, assigns on plaintiffs’ vast expanse of land being, lying and situate at near Tankers’ Garage, off NPA Expressway, Ekpan measuring approximately 6 acres.
3. An order of perpetual injunction, restraining the defendants either by themselves, their agents, servants, surrogates, privies, assigns etc. from building any structure on the said land or otherwise committing any (further) acts of trespass on the said land or doing anything that will adversely affect the title or peaceable ownership, possession and or occupation of the said land being, lying and situate at near Tankers’ Garage, off NPA Expressway, Ekpan measuring approximately 6 acres.”

See pages 1-5 of the records of appeal (hereafter to be simply referred to as “the records”).
An amended statement of claim was filed in the instant case. The reliefs sought by the Plaintiffs therein, as substituted by the Respondents now on record, jointly and severally against the Defendants (and neither of whom is a Respondent on record in the instant appeal) read thus: –
“1. A declaration that the plaintiffs are the persons entitled to statutory right of occupancy and or certificate of occupancy in respect of the vast expanse of land including the area in dispute or disputed portion forming the subject matter of this action being, lying and situate at near Tankers’ Garage, off NPA Expressway, Ekpan measuring approximately 6 acres as delineated in survey Plan No. ER/DT/994/2010 dated 04/03/2010 and with Beacon Nos. SC/DT5186AR, SC/DT1216AR, SC/ST9358G, SC/DT9359G, and SC/DT/6210D, as made by Surv. Michael Eriyamremu.
2. The sum of N10m (Ten million Naira) being general damages for trespass committed by the defendants and or their agents, servants, privies, assigns on plaintiffs’ vast expanse of land being, lying and situate at near Tankers’ Garage, off NPA Expressway, Ekpan measuring approximately 6 acres.
3. An order of perpetual injunction, restraining the defendants either by themselves, their agents, servants, surrogates, privies, assigns etc. from building any structure on the said land or otherwise committing any (further) acts of trespass on the said land or doing anything that will adversely affect the title or peaceable ownership, possession and or occupation of the said land being, lying and situate at near Tankers’ Garage, off NPA Expressway, Ekpan measuring approximately 6 acres.”

The Defendants in the case did not file any statement of defence. The case went to hearing and the lower Court delivered its judgment therein, on 7/7/2010. The judgment was in the terms of the reliefs claimed by the Plaintiffs. See pages 22-27 of the records.

It is pertinent to state at this stage, that this Court in the order it made on 14/11/2018, substituted the three Respondents as set out in the briefs of argument of the parties, for the Plaintiffs in Suit No. EHC/197/2009 as set out in the records by which the instant appeal was entered. Although, there are now three named Respondents set out in the briefs of argument filed in the instant appeal consequent to the aforementioned order of substitution, I cannot but observe that despite the fact that the Appellant knew of the death of Benson Mejogbamu for over two years prior to the bringing of his application to set aside the judgment of the lower Court delivered on 7/7/2010, (see paragraph 7 of the affidavit in support of the motion to set aside), the Appellant not only brought the motion to set aside the judgment of the lower Court delivered on 7/7/2010, against this dead party, amongst others, but that the record compiled and transmitted to this Court reflects the name of the said dead party as the 3rd Respondent. Aside from this, the parties and particularly the Appellant without any application made to the Court for the deletion of the name of the dead party in question as a party in the instance appeal, unilaterally amended the notice of appeal in the instant appeal as it were, by the non-reflection of the said dead party in the appeal in their briefs of argument, apparently riding roughshod on the order of substitution made by the Court on 14/11/2018, in relation to the original plaintiffs in the case at the lower Court and who brought their action for and on behalf of Ogbgovwan Family of Ekpan and not for themselves and on behalf of Ogbovwan Family of Effurum as stated in the notice of appeal. Suffice it to say, that the above manoeuvre is not one that the Court finds to be in tandem with its Rules. This is because parties are not permitted to change the identities of parties on record and howsoever, they are described or have been described in an appeal, whimsically or capriciously. Be that as it may!

After the lower Court had delivered its judgment on 7/7/2010, the Appellant on record as Applicant before the lower Court brought a motion on notice dated 22/5/2012, and filed on 23/5/2012, seeking for: –
“An order setting aside the judgment delivered by this honourable Court on the 7th day of July 2010 for want of jurisdiction and competence”.

The grounds for the motion on notice are: –
“1. The Applicant is a necessary party affected by the judgment delivered in this suit.
2. The Applicant was not joined as a defendant in this suit despite having an interest over the subject matter in dispute to the knowledge of the claimant, their agents, and/or privies.
3. The Applicant has a legal right/interest to protect which is not frivolous.
4. The 2nd defendant in this suit is not a legal personality know to Nigerian statutes and/or the rules of Court.
5. At the time the writ of summons was issued, the 1st defendant was bed-ridden with stroke and rendered incommunicado for over a year to the knowledge of the claimants.
6. Relevant Court processes in this suit were never served on any of the defendants as required by law before judgment was entered against them.
7. Hearing notices were not served on the defendants from the inception of the suit until judgment was delivered.”

See pages 29-32 of the records for the motion in question and its supporting affidavit. In the said supporting affidavit, the Appellant herein as Applicant before the lower Court deposed amongst others as follows:
“Paragraph 2
I became aware of the judgment in this suit delivered on the 7th day of July 2010 by this Honourable Court in the month of January, 2012 when the workmen I sent to a piece of land granted to me by the 1st defendant on record were prevented from accessing the land by the claimants and/or their agents and privies.
Paragraph 3
I was not joined as a defendant in this suit despite the fact that I have been on the land for over five (5) years to the knowledge of the claimants.
Paragraph 4
About two weeks later, I was served with what was branded a “warning notice” to which was attached, an enrolment of order of the judgment of this Court. The copy served on me is attached herewith and marked as Exhibit VEO 1.
Paragraph 5
The said judgment delivered on the 7/7/2010 has substantially affected my legal right/interest which I am desirous of protecting and which is not frivolous.
Paragraph 7
I know as a matter of fact that the 1st defendant has been dead for over two years now.
Paragraph 8
I am aware that at the time the writ of summons was issued, the 1st defendant had been bed-ridden with stroke and rendered physically and mentally incommunicado to the knowledge of the claimants. He could therefore not have been served with the originating processes and/or any other process in this suit and/or at all.
Paragraph 9
I personally made a search at the registry of this Honourable Court and also applied for the certified true copies of the proofs of services of processes in this suit and found out that none of the processes of Court were validly served on any of the defendants.
Paragraph 10
Certified copies of all the proofs of services filed in this suit are herein attached and marked as Exhibits VEO 2 to VEO 6.
Paragraph 11
The claimants are presently on the rampage in the whole area of land described in the writ of summons and statement of claim and using Exhibit VEO 1 to harass, intimidate and blackmail innocent occupiers especially my humble self.
Paragraph 12
It is in the interest of justice to grant this application as I have a legal right to protect which is not frivolous.”

The Respondents filed a counter affidavit to the supporting affidavit to the motion on notice brought by the Appellant. Therein, the Respondents aside from deposing to the effect that all the processes that issued in the instant case were served on the “named Defendant” therein (and who was then alive), further deposed thus: –
“Paragraph 7
The Applicant does not possess a valid title or interest to any part of the parcel of land, the subject matter of this action, but only interested “scatter” the judgment.
Paragraph 8
Moreover, the Applicant is neither a member of the Defendant’s family nor related in anyway and does not hold brief for the Defendant’s family.”

On 8/10/2012, the lower Court entertained the Appellant’s motion on notice to set aside its judgment delivered on 7/7/2010; and reserved its ruling thereon till 14/11/2012. The said ruling was however delivered on 20/2/2013. The ruling spans pages 60-63 of the records. For ease of reference, I consider it expedient to re-produce the ruling in question. It goes thus: –
“The applicant in his affidavit swore that it was in the month of January, 2012 that he became aware of the judgment of this Court which had been delivered on the 7th July 2010. That was when his workers were prevented by the claimants from accessing a piece of land granted to him by the 1st defendant. He had not been a party to the suit on which the judgment was delivered despite the fact that the claimants knew he had been on the land. The said judgment of 2010 he says has affected his legal rights and that the 1st defendant had in fact died for over two years now though during the pendency of the case the 1st defendant had a stroke and had been bedridden and incommunicado. He denied therefore that the 1st defendant was served with the processes of Court.
Through their counsel’s secretary the claimants’ denied most of the statements in the affidavit in support of the application to set aside the judgment of 7 July, 2010. She swore that all processes had been duly served on the 1st defendant before the case proceeded. She says also that the applicant does not possess any title to the land the subject matter of the judgment.
In his written address, the applicant contended that this is one case where the Court can set aside its judgment. He says there were no proper defendants as the 2nd defendant was described as person unknown and as such is not a legal entity and could not have been sued. Further counsel submitted that the originating processes were not served on the defendants on record. He says the affidavit of service do (sic) not show proper service as the address of the defendants was not shown. Also, hearing notices were not issued or served.
The claimant’s counsel contended that the applicant had no locus to bring the application. The applicant claimed to have derived title from the 1st defendant but did not exhibit any title deeds. Also, since the Court had declared the 1st defendant a trespasser, so any tenant of his faces the same fate. Moreover, the judgment against the 1st defendant is also against his agents, servants, surrogates, privies, assigns as stated in the claim. Counsel contended that the applicant has not supplied facts for the setting aside of a judgment. The 1st defendant is the only person to deny that service of Court processes were (sic) not served on him.
First of all, I will take the issue of locus standi. To determine whether the applicant has locus, one must find whether he has sufficient interest in the subject matter. See EMEZI V. OSUAGWU (2005) 12 NWLR (Pt. 939) where the Court held that the term locus standi denotes the legal capacity based upon sufficient interest in a subject matter to institute proceedings in a Court of law to pursue a specified cause. It is the legal capacity to institute an action in a Court of law.
What constitutes a legal right, sufficient or special interest, or interest adversely affected will of course, depend on the facts of each case. See ADESANYA V. PRES. F.R.N (1981) 5 S.C. 6.
From the affidavit of the applicant, I do not see how he claims to have title to the land, the subject matter of the judgment of this Court. No title deeds were exhibited and nothing in the affidavit in support to even establish possession and on which or all parts of the land. To show sufficient legal interest, it is my belief that the applicant must exhibit his title or survey plan or evidence of possession. This he has not done.
It is therefore easy for me to come to the conclusion that this is not a proper case for me to set aside the judgment of this Court as the requirements for such have not been met by the applicant. A Court can set aside its judgment in any of the following instances and circumstances: –
(a) When the judgment is obtained by fraud or deceit either in the Court, or of one or more parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave.
(b) When the judgment is a nullity, a person affected by an Order of Court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside.
(c) When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it.
(d) Where the judgment was given in the absence of jurisdiction;
(e) Where the procedure adopted was to deprive the decision or judgment of the character of a legitimate adjudication.
See INEC & ANOR V. MADUABUM (2008) LPELR/EP-CA/A/100/M/2007.
I also agree that the only person who can complain of lack of service is the 1st defendant who the applicant agrees was alive when the judgment of this Court was delivered.
The application is dismissed.”

Being aggrieved with the ruling re-produced above, the Appellant initiated the instant appeal against the same, by lodging at the registry of the lower Court on 17/4/2013, a notice of appeal bearing the same date. The notice contains 4 grounds of appeal. The grounds of appeal and their respective particulars as set out in the notice read: –
“GROUNDS OF APPEAL
GROUND ONE (1)
The ruling of the learned trial Judge is against the weight of evidence.
GROUND TWO (2)
The learned trial Judge erred in law when he held that “from the affidavit of the applicant, I do not see how he claims to have title to the land, the subject matter of the judgment of this Court. No title deeds were exhibited and nothing in the affidavit in support to even establish possession and on which or all parts of land.”
PARTICULARS OF ERRORS
i. The appellant had stated copiously in paragraph 2 of his affidavit in support of his motion that:
“I became aware of the judgment in this suit delivered on the 7th day of July, 2010 by this Honourable Court in the month of January, 2012, when the workmen I sent to a piece of land granted to me by the 1st defendant on record were prevented from accessing the land by claimants and/or their agents and privies.”
ii. The Appellant was also served by the claimants with Exhibit VEO 1 which is a warning Notice to which was attached the judgment of the lower Court which the appellant herein applied to set aside.
iii. The Appellant was served with the said Exhibit VEO 1 which is attached to the appellant’s motion to set aside the judgment at the lower Court because he was in possession of a portion of the land put in dispute by the claimants/respondents.
iv. The Plaintiffs/respondents did not deny in their counter affidavit the fact that the appellant was in possession of part of the land put in dispute and the fact that they served exhibit VEO 1 on the appellant.
GROUND THREE (3)
The learned trial Judge erred in law when he stated that “to show sufficient legal interest, it is my belief that the applicant must exhibit his title or survey plan or evidence of possession. This he has not done.”
PARTICULARS OF ERRORS
i. There is no law that requires the appellant to exhibit his title document or survey plan to show sufficient legal interest in a land.
ii. The title document and/or survey plan to show and/or establish legal interest is expected at the hearing of the substantive suit and not at the preliminary stage of the proceedings.
iii. The acts of ownership or possession shown by the appellant in his affidavit in support of motion to set aside the judgment of the lower Court is sufficient.
iv. What is required to set aside the judgment of the Court is not a legal interest but equitable interest (i.e. possession) which was copiously stated in the appellant affidavit in support of motion.
GROUND FOUR (4)
The learned Judge erred in law when he held that “this is not a proper case for me to set aside the Judgment of this Court as the requirement for such have not been met by the applicant”.
PARTICULARS OF ERRORS
i. There was no service at all and/or proper service of the Writ of Summons, Statement of Claim, Witness Statement of Oath of the claimants and other processes on the 1st defendant.
ii. The 2nd defendant is unknown to law and was not served with any of the processes including the Writ of Summons, Statement of Claim, Plaintiffs witnesses’ statement on oath e.t.c. throughout the period of trial.
iii. The defendants did not enter appearance in this suit and were never served with hearing notice at any stage of the proceedings at the lower Court.

The relief which the Appellant seeks from this Court as contained in the notice of appeal is for “an order setting aside the judgment delivered by the lower Court on the 7th day of July, 2010, for want of competence and jurisdiction”.

The appeal was entertained on 7/9/2020 with learned counsel, S.O. Edederie in urging the Court to allow the appeal, adopting the Appellant’s brief of argument dated 3/12/2018 and filed on 13/12/2018, and Appellant’s reply brief of argument dated 23/4/2019, and filed on the same date. In the same vein, learned counsel, O.P. Dafiaghor (Miss) holding brief for D.A. Duata adopted and relied on Respondent’s brief of argument dated 8/4/2019, and filed on the same date, in urging the Court to dismiss the appeal.

The Appellant formulated two issues which were not tied to the grounds of appeal, for the determination of the instant appeal. The two issues are: –

“(1) Whether the learned trial Judge was right when she held that the Appellant did not show sufficient interest in the subject matter of the suit as to be entitled to set aside the judgment of the Court.
(2) Whether the learned trial Judge was right when she held that the Appellant did not satisfy the requirements for the setting aside of a judgement entered in default and/or without jurisdiction.”

The Respondent formulated a lone issue for the determination of the instant appeal. The issue reads: – “Whether the learned trial Judge at the lower Court was right in refusing the Appellant’s application at the lower Court urging the Court to set aside its judgment delivered on 7th of July 2010.”

It is pertinent to also stated that at the hearing of the instant appeal, this Court raised the issue as to whether the Appellant rightly approached the lower Court for the relief, he sought in the motion that resulted in the ruling of 20/2/2020, delivered by the lower Court against the backdrop of the statement contained in para. 1.02 of the Appellant’s brief of argument.

The response of learned counsel for the Appellant was “Yes”. He further said that the answer is at pages 4-7 of the Appellant’s brief of argument.

On the other hand, the stance of learned counsel for the Respondents on the issue, was that as the Appellant was not a party at the lower Court, he could not have brought an application to set aside the judgment in question. That he should have sought for the leave of the lower Court in the first instance, to appeal against the decision he felt aggrieved with.

In this regard see the case of ANGADI V. PDP (2018) LPELR-44375(SC) wherein the Supreme Court dwelling on instances when a Court can raise issue(s) suo motu and determine same without hearing parties, stated thus: –
“The issue of whether the trial Court below was right in considering processes which they had not been addressed on processes filed before it. This Court has held particularly in GBAGBARIGHA vs TORUEMI (2013) 6 NWLR (Pt. 1350) 289 at 310, paragraphs C-G as follows: “When a Judge raises an issue on his own motion, or raises an issue not in contemplation of the parties; or an issue not before the Court, the Court is said to have raised the issue suo motu.
The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue… but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue raised suo motu by the judge: –
1. When the issue relates to the Court’s own jurisdiction;
2. When both parties are not aware or ignored a statute which may have bearing on the case; or

When on the face of the record serious questions of the fairness of the proceedings is evident.”In any event, I am of the view that the issue raised by this Court at the hearing of the instant appeal to wit: “whether the Appellant rightly approached the lower Court for the relief, he sought in the motion that resulted in the ruling of 20/2/2020 delivered by the lower Court against the backdrop of the statement contained in para. 1.02 of the Appellant’s brief of argument” does not actually qualify as an issue that was raised suo motu inasmuch as it flowed from the position of the Appellant as conceded by him that he was not a party, in his brief of argument; and that even if it was an issue raised suo motu, it is obvious from what has been stated hereinbefore that the parties were given the opportunity of addressing the Court on the said issue at the hearing of the instant appeal. This is aside from the fact that the issue raised by the Court, in my considered view, is sufficiently subsumed in Appellant’s issues 1 and 2, as well as the sole or lone issue formulated by the Respondent for the determination of the instant appeal. It was therefore not surprising that the Appellant referred the Court to pages 4-7 of his brief of argument as providing the answer to the issue raised by the Court.

As it has been stated hereinbefore, the issue raised by the Court at the hearing of the instant appeal, was informed by the content of paragraph 1.02 of the brief of argument of the Appellant. The paragraph reads: –
“1.02 The appellant was not a party to the suit at the lower Court. The facts and circumstances that brought the appellant into this matter which provoked the ruling which gave rise to this appeal is reproduced hereunder as contained in the appellants affidavit in support of the motion to set aside the judgment of the trial Court: ….
Pages 4-7 of the Appellant’s brief of argument which is said to provide the answer to the issue raised by the Court reads:
“(2) …
4.00 ISSUE NO. 1
4.01 WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN SHE HELD THAT THE APPELLANT DID NOT SHOW SUFFICIENT INTEREST IN THE SUBJECT MATTER OF THE SUIT AS TO BE ENTITLED TO SET ASIDE THE JUDGMENT OF THE COURT.
4.02 It is trite law that a Court of law has inherent power of a Court of justice to set aside its own judgment and/or its decision and the conditions for the exercise of such power have been set-out in plethora of decided cases of the Court of Appeal and the Supreme Court. In the case of DANA IMPEX LTD VS. ADEROTOYE (2006) ALL FWLR PART 308, PAGE 1338 AT PAGE 1349, PARAS D-H the Court held as follows: –
“…The six (6) conditions given in the above cited case for the Court to set aside its own decision are as follows: –
“(a) Where the judgment was obtained by fraud or deceit either in the Court or of one or more of the parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave.
(b) When the judgment is a nullity, a person affected by such order is entitled ex debito justitae to have it set aside.
(c) Where it is obvious that the Court was misled into giving judgment under a mistaken brief that the parties consented to it.

(d) Where in a cross-appeal, the respondent’s cross-appeal was not considered in the judgment.

(e) Where the judgment was given in the absence of jurisdiction; and
(f) Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication”
4.03 From the grounds relied upon by the appellant in his application at the Court below, there is no doubt that the application is covered by some of the grounds enunciated in the judgment cited above. Specifically, (a)(b)(e) and (f).
As stated earlier in paragraph 1.00 of this brief, the appellant was not a party at the trial Court, but he brought this application at the lower Court because according to grounds 1 – 3: –
1. The Applicant is a necessary party affected by the judgment delivered in this suit.
2. The Applicant was not joined as a defendant in this suit despite having an interest over the subject matter in dispute to the knowledge of the claimant, their agents, and/or privies.
3. The Applicant has a legal right/interest to protect which is not frivolous.
4.04 In support of the above grounds, the appellant deposed in paragraphs 2, 3, 4, 5 and 11 of his affidavit in support as follows:- “2. I became aware of the judgment in this suit delivered on the 7th day of July, 2010 by this Honourable Court in the month of January, 2012 when the workmen I sent to a piece of land granted to me by the 1st defendant on record were prevented from accessing the land by the claimants and/ or their agents and privies”
3. I was not joined as a defendant in this suit despite the fact that I have been on the land for over five (5) years to the knowledge of the claimants
4. About two weeks later, I was served with what was branded a “warning notice” to which was attached an enrolment of order of judgment of this Court. The copy served on me is attached herewith and marked as Exhibit VE01″.
5. The said judgment delivered on the 7/7/2010 has substantially affected my legal right/interest which I am desirous of protecting and which is not frivolous
11. The claimants are presently on the rampage in the whole area of the land described in writ of summons and statement of claim and using copies of Exhibit VE01 to harass, intimidate and blackmail innocent occupiers especially my humble self 4.05 In answer to the above definite depositions, the original respondents deposed inter- alia as follows: –
4. The facts in support of the instant application are hereby denied and the Applicant is put to the strictest proof thereof
The Applicant does not possess a valid title or interest to any part of the parcel of land, subject matter of this action, but only interested to “scatter” the judgment.
4.06 By the above deposition, the original respondents only and/or main grounds for their opposition is that the appellant “does not possess a valid title or interest”. With the greatest respect to the Counsel to the original Respondents and the Learned Trial judge, the issue of the VALIDITY of the title of the appellant cannot arise and cannot be determined at this stage. It is a matter for a full trial. What the law and the decided authorities enjoined the appellant to prove is that he is a person affected by the judgment and/or interested in the outcome and/or subject-matter of the suit.
The appellant deposed to the fact that whilst on the land he was served with Exhibit VE01 Which is copied at page 33 of the records. For clarity and the avoidance of doubt, Exhibit VE01 states as follows:-

“TO WHOM IT MAY CONCERN
WARNING NOTICE
THIS NOTICE IS TO WARN ALL TRESPASSERS THAT THIS PROPERTY BELONGS TO OUR CLIENTS, OBGOVWAN FAMILY OF EKPAN, BY VIRTUE OF THE JUDGMENT OF THE HONOURABLE COURT IN SUIT NO. EHC/197/2009”
The fact referred to above was not denied, the question is if the appellant has not proved: –
”How he claims to have title to the land, the subject matter of the judgment of this Court. No title deeds were exhibited and nothing in the affidavit in support to even establish possession and on which or all parts of the land, as contended by the Learned Trial Judge, why was he served with Exhibit VE01?
Further, it is not the law that the appellant must show “sufficient legal interest”. The appellant need not also exhibit his title or survey plan or evidence of possession.
The uncontroverted facts in the appellant’s affidavit in support demonstrated sufficient interest and/or title and/or evidence of possession to cloth the appellant with the requisite locus to bring the application.
After all, it is trite law that a survey plan is only necessary in an action for declaration of title where the identity of the land is in issue See: –
(1) AWOYOOLU VS. ARO (2006) ALL FWLR PART 308 PAGE 1319 AT PAGE 1332 -1333.
(2) AGBEJE VS. AJIBOLA (2002) 2NWLR PART 750 PAGE 127
4.07 What is more? The law is clear that one of the five ways to claim title to land is by traditional history. “Title deeds” do not constitute exclusive proof of title.”
See AYORINDE VS. KUFORIJI (2007) 1 ALL FWLR PART 362 PAGE 1985.
The Learned Trial Judge was therefore wrong to hold that because the appellant did not exhibit his title deed and/or file and exhibit a survey plan, he did not show sufficient legal interest to set aside a judgment affecting his interest in the subject-matter of a land dispute.
4.08 Finally, the judgment is further liable to be set-aside on the application of the appellant who though as he alleged at paragraph 3 of the affidavit was in possession of the land to the knowledge of the Respondent, was not joined as a defendant to the action.
It is trite law that a plaintiff must join in an action for possession and/or declaration of title, every person who is on the land in dispute. See NZEKWU VS. NZEKWU (1989) 2 NWLR PART 104, PAGE 373 AT PAGE 391, PARAG.
5.00 ISSUE NO. 2
5.01 “WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN SHE HELD THAT THE APPELLANT DID NOT SATISFY THE REQUIREMENT FOR THE SETTING ASIDE OF A JUDGMENT ENTERED IN DEFAULT AND/OR WITHOUT JURISDICTION”.
5.02 We submit that some of the grounds relied upon in bringing this application includes: –
(1) The 2nd defendant in this suit is not a legal personality known to Nigerian statutes and/or the rules of Court
(2) Relevant Court processes in this suit were never served on any of the defendants as required by law, before the default judgment was entered against them.
(3) Hearing notices were not served on the defendants from the inception of the suit until judgment was delivered
In support of these grounds, the appellant, a legal practitioner deposed thus:
(6) The 2nd defendant in this suit is not a legal and/or juristic personality known to Nigeria statutes and/or rules of Court
(7) I know as matter of fact that the 1st defendant has been dead for over two years now
(8) I am aware that at the time the writ of summons was issued, the 1st defendant had been bed-ridden with stroke and rendered physically and mentally incommunicado to the knowledge of the claimants. He could therefore, not have been served with the originating processes and/or any other process in this suit and/or at all
(9) I personally made a search at the registry of this Honourable Court and also applied for the certified true copies of the proofs of service of processes in this suit and found out that none of the processes of Court were validly served on any of the defendants
(10) Certified true copies of all the proofs of services filed in this suit are herein attached and marked as Exhibits VEO 2 – VE06″

Having regard to the cases, I am of the considered view that all the Appellant has exhibited in the instant appeal regarding his stance that he as a non-party in/to the proceedings that resulted in the judgment delivered by the lower Court on 7/7/2010, can simply bring a motion to have the said judgment set aside on the ground of the interest he has in the subject matter of the case determined by the said lower Court and/or incompetence of the said judgment, is a clear misapprehension of the position of the law regarding the options open to him given his peculiar circumstances. In other words, I am of the settled view that going by the cases, a non-party to an action cannot willy-nilly walk into the proceedings in a case, to seek for the setting aside of the judgment delivered in the case by the very Court which delivered the judgment in question. The situation of the Appellant in the instant appeal in my considered view is akin to the one that arose for consideration by this Court in the case of UMEZ ENGINEERING CONSTRUCTION CO. LTD V. ALOZIE (2018) LPELR-44656(CA). The position of this Court in the leading judgment written/prepared by Lokulo-Sodipe, J.C.A.; was that a person who was not a party to an action at the trial Court cannot properly apply to the same Court or a Court of co-ordinate jurisdiction to have the judgment delivered in the said case, set aside. In arriving at the decision, this Court applied reasoning in the case of BELLO V. INEC (2010) LPELR-767(SC), (2010) 8 NWLR (Pt. 1196) 342 S.C. Dwelling on the issue as to the remedy available to the person that is not a party to a case; where judgment is given against him” the Supreme Court stated thus: –
…”As I have earlier observed in this judgment, the main issue calling for determination in this appeal is whether the judgment of the Abuja Division of the Federal High Court or trial Court given on 4th April, 2007 was a default judgment which is also a nullity as affirmed on appeal by the Court of Appeal by virtue of the non-service of the originating processes on the 2nd Respondent which was entitled as of right, to apply to the trial Court and have that judgment set aside. The law regarding the position of any judgment or order of Court which is a nullity for any reason whatsoever is that the Court in its inherent jurisdiction is entitled ex-debito justitiae to have that judgment or order set aside on the application of an affected or aggrieved party or even suo-moto. See … In other words on the applicable procedure, the Court in exercise of its inherent jurisdiction, can set aside its own judgment or order which is a nullity without necessarily resorting to appealing against that judgment or order by the affected party. What I have to determine in this issue is whether or not the judgment of the trial Court of 4th April, 2007 is truly a nullity as found by the trial Court and affirmed by the Court of Appeal.
In the present case, the grounds upon which the 2nd Respondent went to the trial Court to have the judgment of that Court of 4th April, 2007 set aside, are set out in its application quoted in the Ruling of the trial Court of 20th July, 2007 at pages 155 – 156 of the record where the 2nd Respondents (sic) claims are stated-
1) An order extending time within which the Defendant/Applicant may apply to set aside the judgment of the Court dated 4th day of April, 2007
2) An order of Court setting aside the entire proceedings and the judgment of the Court dated 4th day of April, 2007 against the Defendant.
3) Any other order(s) as this Honourable Court may deem fit to make the circumstances.
The prayers were predicted on two (2) grounds:
a) Failure to serve the 2nd Defendant/Applicant the Originating Process or any Processes in this suit.
b) Breach of the Fundamental rights of fair hearing of the Defendant/Applicant.
After hearing the parties on the application, the learned trial Judge came to the conclusion that its judgment of 4th April, 2007 was a nullity and therefore proceeded to set it aside on the application of the 2nd Respondent described in the application as a “Defendant/Application.” The relevant part of the ruling of the trial Court at pages 167 – 168 of record reads –
“On the final issue, Order 38 Rule 9 of the Federal High Court Civil Rules 2000 provides:
“Any judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the Court may allow for good cause shown.”
The Court certainly has power to set aside a default judgment.
As it is, this is a default judgment that affected the interest of a necessary party who was initially made a party but whose name was withdrawn by the Plaintiff possibly to shield it from the proceedings. The failure to include a necessary party in a suit has been held to be fatal to the case of a plaintiff and robs the Court of jurisdiction. See …

A Court cannot make an order against a non-party. See … On the whole, I uphold the applicants Motion for the reasons stated above. The judgment delivered on the suit of 4th April, 2007 is hereby set aside.
When the Appellant appealed against the ruling of the trial Court to the Court of Appeal, the only issue that was placed before that Court for determination was – “Whether the trial Judge was not in error when he set aside his judgment of 4th April, 2007 upon an application by persons who were not parties and who did not apply to be joined in the proceedings”.
In resolving the long (sic) issue for the determination of the appeal, the Court of Appeal agreed with the Respondents that the trial Court was right to have given the 2nd Respondent the right of hearing and setting aside the default judgment particularly when that judgment and the earlier withdrawal, were not served on the party, the 2nd Respondent. The Court below also agreed with the findings of the trial Court on the affidavit evidence before it that the judgment of 4th April, 2007, was ab-initio a nullity which could have been set aside without much ado. Therefore, in dismissing the Appellant’s appeal, the Court below was also of the view that since the judgment of the trial Court was a nullity, the 2nd Respondent, as a party which was affected by the order of the trial Court which order is a nullity, is entitled, ex-debito-justitiae to have that judgment set aside.
The first question for determination in the present appeal from the single issue earlier identified in this judgment is whether the 2nd Respondent was a party to the Appellant’s action and proceedings in the Amended Originating Summons that culminated in the judgment of 4th April, 2007, which is the subject of this appeal. In Green v. Green (1987) NSCC 115 at 121, Oputa J.S.C. had cause to define parties as –
“Persons whose names appear on the record as Plaintiff or Defendant”.
Similarly, in Fawehinmi v. NBA (No. 1) (1989) 2 NWLR (pt. 105) 494 at 550, Oputa J.S.C. again in defining ‘a party’ had this to say –
”A party to an action is a person whose name is designated on record as Plaintiff or Defendant, the term party refers to that person(s) by or against whom a legal suit is sought.
Whether a natural or legal person but all others who may be affected by the suit indirectly or consequently are persons interested and not parties.”
It is quite clear from the record of the trial Court that although, the 2nd Respondent was a party to the Appellant’s action in the 1st Originating Summons filed at the trial Court as the 2nd Defendant in the action, the steps taken by the Appellant as the Plaintiff in the action by an application under the rules of the Court to drop the 2nd Respondent as a Defendant in the action, was duly granted by the Court resulting in deeming the Amended Originating Summons with Independent National Electoral Commission as the only Defendant in the action, as duly filed and served. The Amended Originating Summons at pages 46 – 47 of the records clearly reflects the parties in the action as the Appellant’s being the Plaintiff while INEC was the only Defendant. Therefore, the 2nd Defendant in the first Originating Summons filed by the Appellant, had by the process of the amendment to the Originating Summons granted by the trial Court on 1st March, 2007, ceased to be a party or a Defendant in the action.

…The record of proceedings at the hearing which culminated in the judgment of the trial Court of 4th April, 2007 reflected only the Appellant and the 1st Respondent as parties in the case and no more. In short, the 2nd Respondent was not a party in the action that gave birth to the judgment of the trial Court of 4th April, 2007 which is the subject of the present appeal. It was therefore wrong for the trial Court and the Court below to have approached and treated this case on the basis that the 2nd Respondent was a party in the case at the trial Court which was entitled to have been heard.
…
The next question for determination is whether or not the 2nd Respondent was right in going to the trial Court to apply for the setting aside of the judgment of 4th April, 2007 in the circumstances of this case. From the motion on notice filed by the 2nd Respondent on 5th June, 2007 at the trial Court asking for the setting aside of the judgment of that Court of the 4th April, 2007, the reliefs sought and the two grounds upon which the application was brought, were as follows:
“1) An order extending time within which the Defendant/Applicant may apply to set aside the judgment of the Court dated 4th day of April, 2007
2) An order to Court setting aside the entire proceedings and the judgment of the Court dated 4th day of April, 2007 against the Defendant.
3) Any other order(s) as this Honourable Court may deem fit to make the circumstances.”
The two grounds upon which the application was brought are –
“a) Failure to serve the 2nd Defendant/Applicant the Originating Process or any Processes in this suit.
b) Breach of the Fundamental rights of fair hearing of the Defendant/Applicant.”
The records show that at the end of the hearing of this application, the trial Court in its ruling of 20th July, 2007, held that its judgment of 4th April, 2007 was a nullity because it affected the interest of the 2nd Respondent which was not put-on notice being a necessary party in the case and that the failure to join the 2nd Respondent in the suit had robbed the trial Court of its jurisdiction. The ruling of the trial Court setting aside its judgment of 4th April, 2007 on the grounds stated by the Court was affirmed on appeal by the Court of Appeal resulting in the present appeal.
The question to be answered now is whether or not the judgment of the trial Court of 4th April, 2007 is a nullity having regard to the circumstances of this case. In the first place the 2nd Respondent which applied to set aside the judgment on the ground that it was a Defendant in the action and that it was not put-on notice, is not the correct position from the record of this appeal. The 2nd Respondent was indeed not a party in the case. Not being a party in the action of the Appellant as framed in the Amended Originating Summons, there was no obligation on the part of the trial Court to have put the 2nd Respondent on notice. Consequently, failure to put the 2nd Respondent which was not a Defendant in the action on notice was not fatal to the case of the Appellant at the trial Court to the extent of depriving that Court of its jurisdiction in the case, not to talk of resulting in rendering its decision in the case, a nullity. It was indeed a misconception of the state of the law for the trial Court to have regarded the 2nd Respondent, against which there was no specific relief claimed in the action as a Defendant which ought to have been put on notice. For the same reason, the accusation of the 2nd Respondent that the trial Court denied it its Fundamental Right of fair hearing in an action in which it was not a party, has no basis at all in law.
…
However, the judgment of the Court below appeared to have gone even further to state that, an application by the person affected may not even be necessary before the judgment may be set aside. This is what the Court said in its judgment at page 453 of the record –
”It is unthinkable as postured by the Appellant that the 2nd Respondent, the PDP, that put the name of the Appellant to INEC, the 1st Respondent would not be affected by a judgment and orders concerning that nomination within the 2nd Respondent whose flag would be flown at the election proper. It is for that crucial position that a joinder of 2nd Respondent needs not be applied for nor granted before the judgment without the 2nd Respondent would be set aside” With utmost respect, this is not the correct position of the law on the subject where a Court of law gives judgment or order against a person who is not a party in the case. The remedy of such a person lies in availing himself of the provisions of the 1999 Constitution where Section 243(1)(a) and (b) state –
“243. Any right of appeal to the Court of Appeal from the decision of the Federal High Court or a High Court conferred by this constitution shall be
a) exercisable in the case of civil proceedings at the instance of a party thereto, or with leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or; subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings at the instance of such other authorities or persons as may be prescribed.
b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal.”
…
As from the date of this judgment, the orders in which were not directly addressed to the 2nd Respondent but specifically beamed at the 1st Respondent which was a party, the 2nd Respondent which was (sic) a party to the action, but whose interest is directly in issue, had two options open to it-
1) It may stay put and decide to abide by the judgment of the trial Court particularly being responsible in the first place of forwarding the name of Appellant to contest the election as its candidate or,
2) Apply to the same trial Court for leave to appeal to the Court of Appeal within the time prescribed for appealing against the judgment or after the expiration of that time, apply to the Court of Appeal for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal against the judgment as a person having an interest in the matter.
… Whatever prompted the 2nd Respondent to challenge the judgment of the trial Court of 4th April, 2007 of which it was not a party but a party or a person having interest in the matter, ought to have come properly to join in the case as a party before it could have found the appropriate platform to attack the judgment on appeal which could have yielded the same relief of setting aside of that judgment if the grounds for doing so have been established to justify the Court of Appeal granting the relief:
I may observe at this stage that the misconceived course taken by the 2nd Respondent in this case is similar to the course adopted by the Plaintiffs in the case of Okoye v. Nigerian Construction and Furniture Co. Ltd (1991) 2 NSCC Vol. 22 part 422 also reported in (1991) 6 NWLR (Pt. 199) 501 at 532 where this Court held that failure to join as a party a person who ought to have been joined will render the proceedings a nullity on ground of lack of jurisdiction or competence of the Court. Akpata J.S.C. specifically stated the position as follows: –
”In my view failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness, which may result in setting aside the judgment on appeal. Setting aside a judgment or making an order striking out the action or remitting the action for a retrial in such circumstance that will not be for lack of jurisdiction or the basis of the judgment being a nullity. The trial Court itself is incompetent to review the judgment; more so another Court of co-ordinate jurisdiction.”
See also – Laibru Ltd. v. Building & Civil Engineering Contractors (1962) 2 SCNLR 118; Ekpere v. Aforije (1972) 1 All NLR (pt. 1) 220 referred to and applied (pp.530 para. H).
It is quite clear that the whole approach of the 2nd Respondent to the Appellant’s action in which it was not a party resulting in the motion at the trial Court to set aside the judgment and the appeal at the Court of Appeal against the setting aside of the judgment of 4th April, 2007, the 2nd Respondent and unfortunately the two Courts below, laboured under a fundamental misconception of the assumed rights of the 2nd Respondent which regarded itself as a party to the Appellant’s action against the 1st Respondent and as such the 2nd Respondent thought that it was entitled to be put on notice of the case and proceedings thereof claiming that the failure to have done so, should lead to the setting aside of the judgment. The position of the law is well settled that no cause or matter shall be defeated by reason of mis-joinder or non-joinder of parties and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. See Peenock Investment Ltd. v. Hotel Presidential (1982) 12 SC1.
It is also observed that one of the reasons for setting aside the judgment of the trial Court of 4th April, 2007 is that it is a default judgment. It was not only the 2nd Respondent which filed its application to set aside the judgment that regarded it as a default judgment under Order 38 Rule 9 of the Federal High Court (Civil Procedure) Rules, 2000, but that both the trial Court and the Court of Appeal also proceeded on the basis that the judgment is a default judgment. A default judgment is one given in default of appearance or pleadings against a Defendant or a Plaintiff in a cross-action whose names appear as such Defendant or Plaintiff in the record of the trial Court. In the instant case where the Appellant and the 1st Respondent who were the only parties as Plaintiff and Defendant in the action were present or duly represented by their learned Counsel before the trial Court throughout the proceedings up to the point of judgment in question, that judgment cannot be described as a default judgment. It is clearly a judgment on the merit which in law, can only be set aside on appeal. See Alapa v. Sanni (1967) NMLR 397. The Courts below are therefore in error in regarding and treating the judgment of the trial Court of 4th April, 2007 as a default judgment capable of being set aside by the trial Court on the application of the party not heard at the hearing.
Having regard to the circumstances of this case, the appropriate remedy for the 2nd Respondent if it wants to still challenge the candidature of the Appellant in the 21st April, 2007 election, is for it to avail itself of the remedy under Section 243(1)(a) and (b) of the 1999 Constitution as a person having interest in the matter. I may wish to observe at this stage that the cases relied upon by the Respondents is in this appeal in support of their submissions that the judgment of the trial Court of 4th April, 2007 was a nullity, are all cases in which persons who were parties to an action and who were therefore entitled to service of the initiating process and other processes or notice of hearing had not been served at all. The cases have no relevance to the present case in which the 2nd Respondent which was not a party in the case was complaining of not being put on notice. In the same vain (sic), the case of Adenuga v. Odumeru (2003) 8 NWLR (pt. 821) 163 also relied upon by the Respondents where this Court decided that a Court of law has no power to make an order against the interest of persons who were not parties before it as such an order is not in law binding on such parties, is also not relevant to the present case as no specific order was made against the interests of the 2nd Respondent in the judgment of the trial Court of 4th April, 2007 as no interest of the 2nd Respondent was made known as at the date of the judgment regarding the nomination of the Appellant to contest the election as the candidate of the 2nd Respondent.

On the whole, taking into consideration that the main ground upon which the 2nd Respondent challenged the judgment of 4th April, 2007 as being a nullity was the failure of the trial Court to put it on notice for the hearing of the matter, as it has been shown quite clearly from the record of this appeal that the 2nd Respondent was in fact not a party in the case, the ground for regarding the judgment of the trial Court as being a nullity has been completely swept away thereby justifying the Appellant’s appeal being allowed. The appeal has merit and it is therefore allowed. The Ruling of the trial Court of 20th July, 2007 setting aside the judgment of the trial Court of 4th April, 2007 which decision was affirmed on appeal by the judgment of the Court of Appeal of 17th December, 2008 are hereby set aside. In place of the Ruling and Judgment of the Courts below now set aside there shall be entered an order striking out the 2nd Respondent’s motion filed at the trial Court on 5th June, 2007, asking the trial Court to set aside its judgment of 4th April, 2007, as that Court has no jurisdiction to do so…..”
(Underline provided by me from emphasis).

I consider it pertinent to say that in the course of writing this judgment, I came across the case of ARINZE V. JIBRIN (2017) LPELR-43389(CA). Therein, this Court held that “by virtue of Section 46 (1) of the Constitution with the Fundamental Rights (Enforcement Procedure) Rules, 2009 made pursuant to Sub-section 3 of Section 46 of the 1999 Constitution by the Chief Justice of Nigeria, Order X of the rules which made specific provisions for Certiorari application; a person not party to a case wherein an inferior Court made a rascal order outside its jurisdiction; which order “any person” including a person not a party to the suit alleges that any of the provisions of Chapter IV of the Constitution, has been, is being or is likely to be contravened in any state in relation to him may, outside his right to obtain leave to appeal as an interested party; apply for an order of Certiorari and have removed any such proceedings for the purpose of their being quashed.”
I need only say that the judgment cited above, clearly has no application in the instant appeal as the proceedings before the lower Court and in respect of which it gave judgment on 7/7/2010, was not by way certiorari for judicial review.
In the instant appeal, and having regard to the cases cited by the Court in the resolution of the issue it raised, I cannot but say that the stance of the Respondents on the said issue, to the effect that the Appellant not being a party at the lower Court, could not have properly brought an application to set aside the judgment in question; that he should have sought for the leave of the lower Court in the first instance, to appeal against the decision he felt aggrieved with, is more in accordance with the position of the law. In other words, I find that the Appellant having not joined the case in which the lower Court gave judgment on 7/7/2010, as a party, and thereby being a non-party to the action in which the lower Court gave judgment, could not have properly moved the said Court to set aside its judgment in question. This is so whether or not the judgment was given without jurisdiction, due to the non-service of any of the defendants therein; or on the basis of any interest he (Appellant) claims to have in the subject matter of the said case in which the lower Court delivered its judgment on 7/7/2010. Furthermore, I cannot but also find that the lower Court could not have properly granted the Appellant’s application to set aside its judgment, even if the said judgment was a default judgment (and which the said judgment cannot be a default judgment in relation to the Appellant who was never a party therein and has not become a party in the case till date). This is because, the Appellant’s motion for the setting aside of the judgment of the lower Court delivered 7/7/2010, brought on 25/5/2012, if taken as a judgment given in default of appearance and/or in default of appearance of the defendant at trial, having not contained a prayer for extension of time within which to apply to set aside the so called default judgment; was incompetent and therefore could not have been properly granted by the lower Court. See in this regard Order 10 Rule 9 and Order 30 Rule 4 of the High Court of Delta State (Civil Procedure) Rules, 2009; and the case of EDOSOMWAN V. EDO LINE TRANSPORT CO. LTD (2018) LPELR-4452(CA). This is more so, as no statement of defence was exhibited to the Appellant’s motion filed on 25/5/2012 to have the judgment of the lower Court delivered on 7/7/2010, set aside. In this regard, see the case of OGOLO V. OGOLO (2006) LPELR-2311(SC), (2006) 5 NWLR (Pt. 972) 173 wherein the Supreme Court stated amongst others that: – “From the above, it is very clear and I hereby hold that for the Court to exercise its discretion judicially and judiciously with regards to an application to set aside a judgment given in default of a statement of defence, one of the matters it must consider is whether the applicant’s case is manifestly unsupportable having regards to the proposed statement of defence exhibited to the affidavit in support of the application to set aside the said default judgment. An applicant who fails or neglects to exhibit a proposed statement of defence to an application for an order to set aside a judgment in default of defence cannot be granted that indulgence because, he must satisfy the Court that he has a defence on the merit before he can be allowed in to defend the action.”
I must however hasten to say that the cases cited herein before actually go to support the position of this Court that an application to set aside the judgment of the lower Court cannot properly be made to the said Court by the Appellant, he not being a party in the said case at any time before the judgment he sought to set aside.

Flowing from all that has been said hereinbefore in this judgment, it is in my considered view, glaring that the issues formulated for the determination of the instant appeal by the Appellant, must be and are hereby resolved against him. In the same vein, the sole or lone issue, formulated by the Respondents on record for the resolution of the appeal, is resolved in their favour.

In the final analysis, the instant appeal is grossly unmeritorious and it fails. The ruling of the lower Court appealed against, is upheld.
I make no order as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the lead judgment just rendered by my Lord AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A., and I agree with His Lordship that the Appellant, not being a party to the suit at the lower Court could not have been allowed to apply for same to be set aside.

The locus standi conferred on a party who is not originally a party to a suit can only arise at his instance where he has been granted leave to join or to appeal as an interested party upon satisfying the conditions thereto.

As His Lordship stated on page 23, of his Judgment, the application to apply to set aside the default Judgment was not even properly before the Court as leave, not having been sought and as appropriate.

Time within which to so seek leave have expired and there was in any case no such prayer sought, let alone granted!

The Appellant was a total stranger to the suit and could not have taken any part or have a right or standing to challenge its outcome in the circumstance.

The Appellant, who was a total stranger, in law, only strayed into the proceedings on appeal now and even the exhibition of the statement of Defence and a copy of the Judgment which he sought to have the trial Court set aside as a Default Judgment would not have availed him.

Even the spurious claim to a standing in law, was not supported by the annexure of the documents to have found the facts of the Judgment and the material for the exercise of the lowers Courts, exercise of discretion sought.

I, too, unhesitatingly dismiss this appeal in agreement with the lead opinion and abide with the discretion in not awarding costs, as the misapprehension of the law in the circumstances, should not be transferred as a burden on a litigant.
Appeal is dismissed.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft judgment of AYOBODE OLUJIMI LOKULO – SODIPE, J.C.A. and I agree with the reasoning and conclusions contained therein. I have nothing to add as the judgment has covered the field.

I too dismiss appeal and I agree with the orders made.

Appearances:

S.O. Edederie For Appellant(s)

O.P. Dafiaghor (Miss) holding brief for D.A. Duata For Respondent(s)