MAINSTREET BANK REGISTRARS LTD v. OGUNDIMU (2022)

MAINSTREET BANK REGISTRARS LTD v. OGUNDIMU

(2022)LCN/17056(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, April 06, 2022

CA/L/815/2015(R)

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

MAINSTREET BANK REGISTRARS LIMITED APPELANT(S)

And

ELDER DAVID ALABI OGUNDIMU RESPONDENT(S)

RATIO

WHETHER OR NOT RULES OF COURT MUST BE OBEYED

It is an age long principle of law that Rules of Court are meant to be observed and obeyed by the Court itself and users of Court. They are not made for the fun of it, rather, they are made to aid the Court to attain justice with ease, certainty and dispatch. It is trite that parties have a duty to comply with the Rules of the Court in the conduct of their cases, and it is by so doing that quicker administration of justice can be achieved. See Sharing Cross Educational Services Ltd vs. Umaru Adamu Enterprises Ltd & Ors (2020) LPELR-49567 (SC). In the case of Ogunpehin vs. Nucleus Venture (2019) LPELR-48772 (SC), Eko, JSC, stated:
“Ours is justice according to law, the Rules of Court, particularly those prescribing time table for the conduct of proceedings in the Court are strictly construed. It is strict compliance with the rules that ensures quicker administration of justice and the Court shall not, in anyway, exercise its discretion in favour of he who disobey its Rules.”
Emphasizing the need for strict compliance with the Rules of Court in the case of Ifeanyichukuwu Trading Investment Ventures Ltd & Anor vs. Onyesom Community Bank Ltd (2015) LPELR-24819 (SC), Ariwoola, JSC, had this to say:
“It is trite law that the rules of Court are to be obeyed and complied with. In the event of a non-compliance with the rules and it is not explained away, unless the non-compliance is of a minimal kind, the Court must not grant any indulgence…
See also Kente vs. Ishaku (2017) LPELR-42077 (SC); Mmuodili & Ors vs. Onwuba & Ors (2020) LPELR-55917 (SC). The Apex Court has held that the insistence on strict compliance with the rules, particularly the rules of appellate Courts, is not an indulgence in technicality, but for the timely and efficient administration of justice; Kente vs. Darius (supra). Adekeye, JSC, echoed the essence of Rules of Court in the following words:
“It must be borne in mind that Rules of Court are to regulate matters in Court and help parties in the presentation of their case within a procedure made for the purpose of a fair and quick dispensation of justice in the trial. Strict compliance with the rules makes for quicker administration of justice. They are made to attain justice with ease and certainty, and as such, they are made with that fundamental principle, the Courts now lean heavily on the side of doing justice. The Rules of Court are designed for ensuring that justice is obtained by parties in the citadel of justice. Rules of Court must be complied with, observed and obeyed; non-compliance often attracts the sanction of incompetency and ultimately striking out or dismissal as the case may be.” – FBN PLC vs. T.S.A. Industries Ltd (2010) LPELR-1283 (SC). PER SIRAJO, J.C.A.

WHETHER OR NOT THE COURT MUST HAVE JURISDICTION OVER THE PARTIES BEFORE IT

Generally, apart from subject matter jurisdiction which a Court must posses before it can adjudicate, a Court must also have jurisdiction over the parties before it. The parties could be either natural or artificial persons who derive their legal personality either by statute or upon incorporation or registration. Other than the two categories of juristic persons stated supra, a Court of law has no jurisdiction over a dead person as such a person has already lost his natural legal personality upon death. This is so irrespective of whether the Court is aware that such a party is dead or not, provided the fact of death is established or admitted by the parties. This is exactly the situation in the instant case. At the point of the death of the original Respondent, Mrs. Kehinde Abimbola on 25/10/2017, this Court loses its jurisdiction to make any order in favour or against her. See Olufeagba vs. Abdur-raheem (2009) LPELR-2613 (SC), where Fabiyi, JSC, stated at page 11 of the E-Report:
“It goes without any shred of doubt that the Court can only assume jurisdiction over juristic persons. If a sole party to an appeal dies and there is no substitution, it hardly needs any gain-saying that the appeal ends.” PER SIRAJO, J.C.A.

WHETHER OR NOT A COURT OF RECORD CANSET ASIDE ITS JUDGEMENT

A Court of record has the inherent jurisdiction to set aside its judgment in the following circumstances, i.e., where the judgment was obtained by fraud or deceit either in the Court or of one of the parties, when the judgment is a nullity, in which case a person affected is entitled ex debito justitiae to have it set aside, when the Court was obviously misled into giving the judgment under the belief that the parties consented to it, where the judgment was given in the absence of jurisdiction and whereby the procedure adopted, the judgment is deprived of any legitimate adjudication. See Chime & Anor vs. Ude & Ors (1996) LPELR-848 (SC); Alao vs. A.C.B. Ltd (2000) LPELR- 408(SC); Dingyadi vs. INEC (supra); Ugba vs. Suswam (2014) LPELR-22882 (SC). PER SIRAJO, J.C.A.

MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgement): This application was filed on 14/09/2021 pursuant to Order 6 Rule I of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Court, wherein the Appellant/Applicant sought the following reliefs:
1. AN ORDER declaring the judgment of this Honourable Court delivered on the 24th day of November, 2017 a nullity for being a judgment delivered after the demise of Kehinde Abimbola (“late Respondent”).
2. AN ORDER setting aside the judgment of this Honourable Court delivered on 24th day of November, 2017 for being a nullity as Kehinde Abimbola (“late Respondent”) had lost legal personality before the judgment was delivered.
3. AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

The grounds upon which the application was predicated are:
1. A dead person ceases to have any legal personality from the moment of death and cannot validly remain a party in an appeal after death.
2. An appeal by or against a party in his/her personal capacity abates upon death.

3. That Kehinde Abimbola (late Respondent) died on the 25th day of October, 2017 wherein she ceased to have any legal personality entitling her as a party to the judgment of the Court delivered on 24th day of November, 2017.
4. The judgment of this Honourable Court of 24th November, 2017 is a nullity for being a judgment delivered in favour of a dead person after her death.
5. The Appellant/Applicant became aware of the death of Kehinde Abimbola (late Respondent) after the delivery of the judgment.
6. It is the duty of the late Respondent’s counsel to notify the Court of the death of his client before the judgment was delivered, which he failed to do in this case.
7. This Honourable Court has the requisite powers to set aside its judgment which is a nullity.

An affidavit of 8 paragraphs sworn to by one Solomon Oho, a Legal Practitioner in the law firm of Charles Mekwunye & Co., counsel to the Appellant/Applicant, was filed in support of the application. Annexed to the affidavit are the NBA Receipt dated 04/02/2021 evidencing payment of practicing fee by the deponent, the certified copy of the judgment of this Court sought to be set aside on ground of nullity in Appeal No. CA/L/815/2015 and the Obituary and Funeral Programme of one Deaconess Oluwatoyin Kehinde Omolara Ayinke Ogundimu. There is also a written address settled by Dr. Charles Mekwunye.

In opposing the application, the Respondent, who described himself as the father of Kehinde Abimbola, the late Respondent in the judgment sought to be set aside, personally deposed to and filed a counter-affidavit of 13 paragraphs. A further counter-affidavit sworn to by one Chukwu Benignus Ndubuisi, a Solicitor in the law firm of Paul I. Okoh & Co., counsel to the Respondent, was also filed in further opposition to the grant of the reliefs sought in the application. Counsel’s written address accompanied the two counter-affidavits. In response to the counter-affidavit and further counter-affidavit, the Appellant/Applicant filed two further affidavits, both sworn to by Solomon Oho, the deponent to the original affidavit in support of the application, together with a reply on point of law.

From all the opposing affidavits filed by the parties in support and against this application, the uncontested facts leading to this application can be summarized thus:
On 27/05/2015, the National Industrial Court in Suit No. NICN/LA/517/2013 entered judgment in favour of Kehinde Abimbola against the Appellant/Applicant in a case of wrongful termination of appointment. Dissatisfied with the judgment, the Appellant/Applicant appealed to this Court in Appeal No. CA/L/815/2015. The appeal was argued on 05/10/2017 and judgment delivered on 24/11/2017. In between the hearing of the appeal on 05/10/2017 and delivery of judgment on 24/11/2017, the Respondent, Kehinde Abimbola, died on 25/10/2017, precisely 30 days before the delivery of judgment. The fact of death of Kehinde Abimbola was not known to the Court as at 24/11/2017 when the judgment in the appeal was delivered as none of the Counsel for the parties who were present during the delivery of the judgment informed the Court of the demise of Kehinde Abimbola. The only point of disagreement between the parties as it relates to the facts is that, while the Appellant/Applicant placed at the doorstep of the Respondent the fault of not informing the Court about the demise of Kehinde Abimbola, the Respondent stated that the Appellant was aware of her demise as one of the Applicant’s senior staff, Mrs. Martins-Uwah Udoka, attended the burial of Kehinde Abimbola on 03/11/2017, but failed to inform the Court.

Learned counsel for the Appellant/Applicant submitted two issues for determination in his written address, viz:
1. “Whether the judgment of this Court of 24th November, 2017 is not a nullity?
2. Whether a Court of competent jurisdiction has the power to set aside its judgment which is a nullity?”

The Respondent’s counsel on the other hand, also formulated two issues for determination in his written address –
1. Whether this application is competent
2. Whether the judgment delivered on the 24th day of November, 2017 in this matter is a nullity.

Arguments on the Issues.
Applicant’s counsel submitted that a judgment in favour or against a dead person is a nullity and therefore ineffectual. He relied on In Re NDIC vs. Rosabol (Nig) Ltd & ors (2017) LPELR-41925 (CA); Wahab Alamu Sapo & Anor vs. Alhaja Bintu Sunmonu (2010) 11 NWLR (pt.1205) 374. He argued that a cause of action based on the personal right of a party to a suit does not survive the death of that party. He stated that the appeal in the instant case was against the late Respondent in her personal capacity, which terminated upon her death as there was no legal entity as the “Respondent” in the appeal when this Court delivered its judgment on 24/11/2017. The Court was urged to hold that in the absence of a Respondent, the judgment of this Court delivered on 24/11/2017 is a nullity and of no legal effect whatsoever.

On issue 2, learned counsel submitted that this Court has the competence and jurisdiction to set aside its own judgment that is a nullity. On the circumstances under which a Court can set aside its judgment, reference was made to the cases of Alhaji Muhammadu Maigari Dingyadi & Anor vs INEC & Ors (2011) LPELR-950 (SC); Chief Emmanuel Bello vs. INEC & Anor (2010) 8 NWLR (Pt.1196)342 (SC); Fidelity Bank Plc vs. M.T. “Tabora” (2009) 8 NWLR (Pt.1142) 83 AT 110; University of Calabar Teaching Hospital vs. Lizikon (Nig) Ltd & Anor (2017) LPELR-42339 (CA). He submitted that where an order or a judgment is a nullity, the person affected by it can apply to the same Court to have the order or judgment set aside ex debito justitiae, relying on Citec International Estate Ltd & Ors vs. Francis & Ors (2014 LPELR-22314 (SC); Chief Kalu Igwe & 2 Ors vs. Chief Okuwa Kalu & 3 ors (2002) 14 NWLR (Pt.787) 435 AT 453; Adeyemi-Bero vs. LSDPC & Anor (2012) LPELR-20615(SC). Counsel urged upon us to hold that this Court is vested with the requisite jurisdiction to set aside its judgment of 24/11/2017 as same was delivered against or in favour of a dead and non-existing party, and to proceed to do so.

Marshalling argument on the first issue formulated by him, learned counsel for the Respondent contended that this application is incompetent as same was filed outside the 14 days period prescribed by Order 6 Rule 12 of the Court of Appeal Rules, 2016, placing reliance on the case of Sanusi vs. Ayoola (1992) 9 NWLR (Pt.265) 175. It should be noted that the 2016 Rules was the applicable Rules at the time of filing the Respondent’s counter-affidavit and the written address in September, 2021. He urged the Court to dismiss the application.

On issue 2, learned counsel argued that the action survived the Respondent as her claim at the lower Court was for breach of contract, citing the case of Kareem vs. Wema Bank Ltd (1991) 2 (Pt.174) 485 AT 495. Referring to Order 15 Rule 1 of the Court of Appeal Rules, counsel submitted that the rules do not place the duty of informing or applying for substitution on the counsel formerly acting for the party who died, but on both counsel or whoever wishes to be joined as a party. He argued that the Applicant has a duty to inform the Court of the death of the Respondent when the matter came up for judgment on the 24/11/2017, and that where the Applicant failed to do so, it cannot be heard to complain and be allowed to benefit from its own wrong or error, relying on CDC vs. SCOA (2007) 6 NWLR (Pt.1030) 300 AT 366. It was argued that by virtue of the presence of Mrs. Martins-Uwah Udoka at the burial of the Respondent, as deposed in the counter-affidavit, the Applicant knew that the Respondent was dead but counsel on its behalf did not inform the Court. Learned counsel submitted that judgment given in ignorance of the death of a party should not be annulled when no party brought the fact of death to the attention of the Court. He argued forcefully that judgment given after the death of a party is not a nullity, placing reliance on Order 35/9 of the Supreme Court Practice (White Book) and the case of Sapo vs. Sunmonu (2010) 11 NWLR (Pt.1205) 374. The Court was finally urged to dismiss the application.

Replying on points of law, Applicant’s counsel noted that the further counter-affidavit deposed to by Chukwu Benignus Ndubuisi was not affixed the NBA Seal in contravention of Rule 10 of the Rules of Professional Conduct, 2007 as interpreted in Senator Bello Sarkin Yaki & Anor vs. Senator Abubakar Bagudu & Ors (2015) LPELR (SC); Wike Ezenwo Nyesom vs. Dakuku Adol Peterside & Ors (2016) LPELR-40036 (SC). The Court was urged to expunge paragraph 10 of the counter-affidavit and paragraph 17 of the further counter-affidavit for constituting legal arguments and conclusions and therefore offends the provisions of Section 115 (1) and (2) of the Evidence Act, in line with the decisions in Idu Godwin Emeka vs. Lynda Chuba-lkpeazu & Ors (2017) LPELR-41920 (SC); Josien Holding Ltd & Ors vs. Lornamead Ltd & Anor (1995) LPELR- 1632 (SC).

On the argument of the Respondent that the application is competent, learned counsel submitted that once a judgment and the entire proceedings as in this case are declared a nullity, there is nothing left before the Court upon which the Applicant could base any interlocutory application such as the current one. It was contended that where an act is a nullity, it doesn’t require a Court order to declare it so, it is completely bad, devoid of any legal consequences. Counsel argued that the judgment delivered by this Court on 24/11/2017 is a nullity, ab initio, calling in aid the cases of Madukolu vs. Nkemdilim (1962) 2 SCNLR 341; Saleh vs. Monguno & Ors (2006) LPELR-2992 (SC). Applicant’s counsel submitted that the case of Sanusi vs. Ayoola (supra), relied upon by the Respondent is inapplicable in this case, as the judgment in contention in that case was a default judgment and not a null judgment as in this case. He urged the Court to hold that the application is competent as it was merely filed out of the abundance of caution.

On the submission of the Respondent that the judgment delivered on 24/11/2017 after the death of the Respondent is valid, Applicant’s counsel argued that the law is trite that personal action dies with the person’, meaning that dead men are no longer legal persons in the eyes of the law, having laid down their legal personality at death. See Opebiyi vs. Oshoboja (1976) 9 & 10 SC195; CCB (Nig) Plc vs. Silverwax Intl Ltd (1999) 7 NWLR (Pt.609) 97. It was noted that the question of whether or not a cause of action survives the death of a party is one of law to be determined by the nature of the action or the capacity in which the dead party sued or was sued; The Incorporated Trustees of Jamat-UI-Muslimeen Council of Lagos vs. Oki (2010) 1 NWLR (Pt.1176) 616. He submitted that the Respondent’s action being for wrongful termination of employment was a personal action and therefore cannot survive the death of the Respondent. Reliance was placed on Professor S.O. Abdulraheem vs. Professor B.J. Olufeagba & ors (2006) LPELR-11817 (CA).

Order 35/9 of the Supreme Court Practice 1988 Edition, according to the Applicant’s counsel, is inapplicable in the instant case as there is no lacuna in the Court of Appeal Rules. He prayed the Court to grant the application in the interest of justice.

Resolution of Issues
While issue 1 formulated by the Appellant which challenges the competence of the application stands alone and will be treated separately as a threshold issue, issue 2 of the Respondent is the same as Issue 1 formulated by the Applicant, I will consider them together as issue 2. On the other hand, issue 2 formulated by the Applicant also stands alone and will be considered as issue 3. I will therefore consider the issues for determination in this application in the following re-arranged manner:
1. Whether this application is competent
2. Whether the judgment delivered on the 24th day of November, 2017 in this matter is a nullity.
3. Whether a Court of competent jurisdiction has the power to set aside its judgment which is a nullity?

Issue 1
This issue challenges the competence of the application. Learned Respondent’s counsel argued that the application is incompetent having not been filed within 14 days as prescribed by Order 6 Rule 12 of the Court of Appeal Rules, 2016. Learned Applicant’s counsel responded that the said judgment was ab initio a nullity requiring no order of Court to set it aside but that this application was made out of abundance of caution. He further argued that being a null judgment, there is nothing left before the Court upon which the Applicant could base an interlocutory application.

Order 6 Rule 12 of the Court of Appeal Rules, 2016, referred to by counsel to the Respondent does not exist in the 2016 Rules of this Court, as the said Order has only 11 Rules. I believe the Respondent’s counsel has Order 6 Rule 11 in mind when he wrote Rule 12 in his written address.

Order 6 Rule 11 of the defunct 2016 Rules which is in pari materia with Order 6 Rule 10 of the current Rules, i.e., Court of Appeal Rules, 2021, prescribed time frame within which an application to set aside judgment shall be filed. It provides:
“An application to set aside any judgment or ruling shall not be brought unless it is filed within fourteen days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.”
This provision is explicit.
The provision has recognized the inherent power of this Court to set aside its own judgments or rulings in appropriate cases, but proceeded to set out time frame within which application to that effect shall be made.

The application, subject of this ruling was first filed on 13/12/2017, refiled on 09/03/2021 and further refiled on 14/09/2021, which is the extant application, the earlier two having been withdrawn and struck out. The judgment the application seeks to set aside was delivered on 24/11/2017. There is therefore a gap of 19 days between the delivery of the judgment and the filing of the first application on 13/12/2017. The deponent to the Applicant’s affidavit stated that the Applicant became aware of the death of the original Respondent after the delivery of the judgment. Clearly, this application was filed outside the fourteen days allowed by the Rules of this Court reproduced above. The application was late in time. The Applicant did not seek for enlargement of time within which to apply to set aside the judgment on ground of nullity. In essence, in seeking to have the judgment of this Court declared a nullity and set aside on that ground, the Appellant did not comply with the Rules of this Court in bringing its application.

in the administration of justice, but it must be understood that being rules or regulations to assist the Courts in its effort to determine issues or controversies before the Court, care must be exercised in not elevating them to the status of a statute as they are subsidiary instruments. They are to be used by the Courts to discover justice and not to choke, throttle or asphyxiate justice. They are not sine qua non in the just determination of a case and therefore not immutable.” See also Nishizawa vs. Jethwani (1984) LPELR-2037 (SC).
The Court has power to waive compliance with the rules in exceptional circumstances when it considers that the interest of justice is of paramount importance. See Dingyadi vs. INEC (2010) LPELR-952 (SC).

Now, the provisions of Order 6 Rule 10 of the Court of Appeal Rules and other provisions in the Rules which sets timeline for the doing of anything or taking any step in the proceedings are also geared towards the attainment of justice within a reasonable time. However, conscious of the hardships that such time limiting provisions may sometimes occasioned, Order 6 Rule 9 was inserted to assuage such hardships that may be caused by parties’ inability to keep to provisions in the rules relating to timelines. This will afford litigants who show good cause for their tardiness to have time enlarged for them to take the necessary step in the litigation for which they were out of time in the first place. Therefore, Rules 9 and 10 of Order 6 of the Court of Appeal Rules are not among the species of Rules of Court that can cause hardship to litigants as to warrant jettisoning or waiving them in order to do justice to the parties. It does not, in my humble view, amount to any hardship or injustice for a party who is out of time in taking any step in the proceeding before the Court for him to apply for enlargement of time, supported by an affidavit explaining the reason for the delay. Once the Court is satisfied with the reason advanced for the tardiness, time would be extended for the party applying to enable him/her do the needful.

Since the Applicant was out of time in filing its application, prudence dictates that it should have sought for enlargement of time pursuant to Order 6 Rule 9 of the Court of Appeal Rules. The Applicant, having not done so, one would ordinarily have pronounced its application incompetent. But the situation of this application is not ordinary, rather, it is extraordinary in view of my finding supra that the original Respondent, Mrs. Kehinde Abimbola, died 30 days before the delivery of the judgment sought to be set aside. The rules of Court, being a handmaid of justice, has made provisions for departure from it, if justice will be better served by such a departure than by strict compliance. See Order 25 Rule 2 of the Court of Appeal Rules, 2021. Specifically, Rule 3 of Order 25 permits this Court to waive compliance with the Rules in the interest of justice. It provides:
(1) The Court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the Court may, in such manner as it thinks right, direct the Appellant or the Respondent as the case may be, to remedy such non-compliance or may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.

At this stage of ruling on the application, it is not possible to direct the Appellant to remedy the non-compliance by applying for enlargement of time within which to file the application, subject matter of this ruling. We shall therefore proceed with the determination of the application by waiving the requirement for enlargement of time, as if the application was filed within time. The waiver of the rules will better serve the interest of justice in the peculiar circumstances, than insisting on its compliance. It is better to expediently resolve the propriety of the judgment of this Court delivered after the death of the original Respondent, without her being substituted, than to insist on enlargement of time, leading to another round of application with its attendant waste of time and resources. The raison d’etre for this approach is not farfetched. The refusal to hear this application in the absence of prayer for extension of time will only delay the inevitable, the determination of the competence and efficacy of a judgment delivered during the non-existence of one of the parties, i.e., the Respondent in this case. In the interest of justice, it will be more expedient to waive compliance with Order 6 Rule 10 of the Rules of this Court and proceed to determine the application on merit. I so order.

Issues 2 & 3
I will commence the treatment of these two issues with another preliminary point raised by the Appellant which cuts across them. In his reply on points of law to the written address of the Respondent’s counsel which accompanied the counter-affidavit of the Respondent and the further counter affidavit of Chukwu Benignus Ndubuisi, a Legal Practitioner, Appellant’s counsel challenged the competence of the further counter-affidavit on the ground that the NBA seal or stamp of the deponent was not affixed to the said further counter affidavit.

By virtue of Rule 10 of the Legal Practitioners Rules of Professional conduct, 2007, a lawyer acting in his capacity as a Legal Practitioner, Legal Officer or Adviser of any Government Ministry, Department or Corporation shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association. Documents filed by a Lawyer without the prescribed NBA seal or stamp are not incompetent or void, rather, they shall be deemed not to be properly filed. See Yaki vs. Bagudu (2015) LPELR-25721 (SC); Nyesom vs. Peterside (2016) LPELR-40036 (SC).

The further counter-affidavit deposed to by Chukwu Benignus Ndubuisi was not filed by him, but by Paul I. Okoh, the counsel who filed all the processes in opposition to this application on behalf of the Respondent. Chukwu Benignus Ndubuisi swore to the further counter affidavit as a witness, not as a Legal Practitioner. Rule 10 of the Rules of Professional Conduct is concerned with documents filed in Court by a Lawyer in his capacity as a Legal Practitioner, which in my view does not include an affidavit deposed to by a witness who happened to be a Legal Practitioner by profession, but not acting as such for the party on whose behalf he is giving evidence. In the case of Ado Local Government & Ors vs. Injo & Ors (2020) LPELR-50481 (CA), my learned brother, Ugo, JCA, expressed similar view, as follows:
“I am also unable to subscribe to Mr. Usha’s second argument that Mr. Joseph Valentine Ogizi being a lawyer was bound by Rule 10 of the Legal Practitioners Rules of Professional Conduct to affix his Lawyers stamp and seal on his affidavit supporting applicants’ application and his failure to do that invalidated the said affidavit and left the application bereft of facts to support it. It is settled beyond dispute that a deponent to an affidavit by whatever name called is ordinarily a witness in the matter in which he made his deposition (see Jimoh v. Minister of Federal Capital Territory (2019) 5 NWLR (PT 1664) 45 AT 64 para H (Eko, J.S.C), it cannot therefore be correctly said that such a witness, because he happens to be a legal practitioner, is expected to affix his professional stamp and seal to his deposition even if his deposition has nothing to do with his core professional calling or activities as a legal practitioner. In fact, this argument of Mr. Usha necessarily suggests that even a lawyer who only wishes to depose to an affidavit to be frontloaded in support of his family’s land litigation will have to affix his legal Practitioner’s stamp and seal otherwise his deposition will be unacceptable. That is an absurd interpretation of Rule 10 of the Legal Practitioners Rules of Professional Conduct whose main purpose is to weed out the menace of fake lawyers from engaging in legal practice. The law does not accept absurd interpretations of statutes or instruments.”
To overstretch the applicability of Rule 10 of the Legal Practitioners Rules of Professional Conduct to cover every affidavit evidence deposed to by Legal Practitioners who are merely witnesses before the Court will amount to putting additional burden on litigants who wish to rely on the evidence of Legal Practitioners to prove their cases with dire consequences to the principle of fair hearing. It is not the intendment of the Rules of Professional Conduct to impose additional requirements on Lawyers who wish to exercise their fundamental rights and discharge their civic obligation by giving evidence in Court which, under our current rules of practice, has to be frontloaded in written form. I hold that the further counter-affidavit of Chukwu Benignus Ndubuisi does not contravene Order 10 of the Rules of Professional Conduct.

At the earlier part of this ruling, I made a finding from the affidavit, counter-affidavit, further affidavit and further counter affidavit filed by the parties in this application that the judgment in Appeal No. CA/L/815/2015 between Mainstreet Bank Registrars Limited, as Appellant and Mrs. Kehinde Abimbola, as Respondent delivered on 24/11/2017, was delivered after the death of the original Respondent on 25/10/2017. This means that the Respondent to that appeal died 30 days before the delivery of judgment in the appeal. I also made a finding that this Court was not aware of the death of the Respondent as at the date the judgment was delivered as none of the parties informed the Court about her demise, even though counsel for the parties, particularly that of the Respondent were present in Court during the delivery of the judgment. The Applicant accused the Respondent’s counsel of refusing to inform the Court on her demise. Respondent’s counsel contended that he was not aware as he lost his wife about the same time. The Respondent further countered that the Applicant was also aware of the death of the original Respondent as one of the Applicant’s staff Mrs. Martins-Uwah Udoka, who described herself as a Director of the Applicant, attended the burial of the Respondent on 03/11/2017. The Applicant maintained that it was neither aware that Mrs. Martins-Uwah Udoka attended the original Respondent’s burial nor was it informed by her that the original Respondent has passed on.

Order 15 Rule 1 squarely placed the duty of giving notice of death of a party on the counsel representing that party. The Rule provides:
“It shall be the duty of counsel representing a party to an appeal to give immediate notice of the death of that party to the Registrar of the lower Court or to the Registrar of the Court (as the case may be) and to all other parties affected by the appeal as soon as he becomes aware of the fact.”
It was therefore the duty of learned counsel for the original Respondent, who was in Court on the date of the judgment to have informed the Court and the Appellant/Applicant that his client had died, if he was aware of her death. But that is not the crux of the matter now.

The real issue that calls for determination now is the status of the judgment of this Court which was delivered at a time when one of the parties, specifically the Respondent, has lost her legal personality by virtue of death and was not substituted before the judgment was delivered.

The law is firmly settled that any decision of a Court that is given without jurisdiction will be deemed a nullity. Any defect in the competence of a Court is fatal, for the proceedings are a nullity however well conducted and decided, as the defect in the competence of the Court is extrinsic to the adjudication. See Chief of Air Staff & Ors vs. lyen (2005) LPELR-3167 (SC), Madukolu vs. Nkemdilim (1962) SCNLR 341 AT 348; Shuaibu vs. Nigeria-Arab Bank Ltd (1998) LPELR-3067 (SC); James vs. INEC & Ors (2015) LPELR-24494 (SC); Adesigbin & Ors vs. Military Governor Lagos State & Ors (2017) LPELR-41666 (SC).

Generally, apart from subject matter jurisdiction which a Court must posses before it can adjudicate, a Court must also have jurisdiction over the parties before it. The parties could be either natural or artificial persons who derive their legal personality either by statute or upon incorporation or registration. Other than the two categories of juristic persons stated supra, a Court of law has no jurisdiction over a dead person as such a person has already lost his natural legal personality upon death. This is so irrespective of whether the Court is aware that such a party is dead or not, provided the fact of death is established or admitted by the parties. This is exactly the situation in the instant case. At the point of the death of the original Respondent, Mrs. Kehinde Abimbola on 25/10/2017, this Court loses its jurisdiction to make any order in favour or against her. See Olufeagba vs. Abdur-raheem (2009) LPELR-2613 (SC), where Fabiyi, JSC, stated at page 11 of the E-Report:
“It goes without any shred of doubt that the Court can only assume jurisdiction over juristic persons. If a sole party to an appeal dies and there is no substitution, it hardly needs any gain-saying that the appeal ends.”

Learned counsel for the Respondent cited and relied on the case of Sapo vs. Sunmonu (supra) in submitting that judgment given after the death of a party is not a nullity. The facts in that case are distinguishable from the facts in this application. The decision in Sapo’s case was based on the peculiar circumstances of that case. To start with, in Sapo’s case the issue of nullity of the decision of the Court of Appeal was raised for the first time during the hearing of the appeal before the Supreme Court and without leave of that Court. In the instant case, there was no appeal to the Supreme Court but an application before this same Court asking it to declare its judgment a nullity and to proceed to set it aside. In Sapo’s case, the Respondent, to the knowledge of the Appellant had died even before the appeal at the Court of Appeal was argued, yet he did not inform the Court of Appeal. He never raised the issue of her death before the Court of Appeal to enable the Court make pronouncement on it. He raised the issue for the first time at the Supreme Court without seeking and obtaining leave to do that. In the instant application, the Respondent died after the appeal was argued. Secondly, there is no material before the Court to show that the Applicant was aware of the death of the Respondent as at the date judgment was delivered and it refused to inform the Court. Again, in Sapo’s case counsel for the parties appeared in Court and announced appearance for the parties they were representing on 31/10/2000, after the Respondent had since died on 23/10/1999, without informing the Court of Appeal. That day, counsel adopted their respective Briefs of Argument and judgment was reserved. On 25/01/2001, counsel for the parties were in Court for the judgment. They still did not inform the Court about the death of the Respondent. It appears in that case counsel have connived or swore to an oath of secrecy not to inform the Court of the death of the Respondent more than a year before the hearing of the appeal. In the instant application, the first application to set aside the judgment was filed barely 19 days after the delivery of the judgment. In that case, no application to set aside the judgment was filed at the Court of Appeal. That is not all, on 23/04/2001, a motion for leave to appeal to the Supreme Court and for stay of execution of the judgment of the Court of Appeal was filed on behalf of the dead Respondent and the affidavit in support of the application was sworn to allegedly with the authority of the Respondent, who had died 18 months previously without disclosure of that fact. The above are the peculiar facts of Sapo’s case and its distinguishing features with the present application which makes it inapplicable in the present application. Sapo’s case was decided on the basis of its peculiar circumstances. In that case, Ogbuagu, JSC, concluded his lead judgment at page 15 of the E- Report, by expressing his disgust and frustration with the attitude exhibited by counsel in the continuous prosecution of the case despite their knowledge of the death of the Respondent and for keeping the Court in the dark for such a long time, thus:
“If the Appellants in spite of the mandatory provision in the said Order 3(1) of the Court of Appeal Rules 2002, did not bring to the notice or even orally, inform the Court below of the purported death of the Respondent as far back as 31st October, 1999 up to and including the 25th January, 2001 when its judgment was delivered, how can or could the Court below, be accused of delivering a judgment that is tagged by the Appellants as “null and void”? I or one may again ask. The whole thing in my respectful view, is absurd to the extreme….From the foregoing, it is amazing to me that notwithstanding the above observation, this issue has surfaced in this appeal. With respect, it is a pity, unfortunate and bogus to say the least. However, since the issue is raised without leave, it is incompetent and it is accordingly struck out.”

It is worthy of note that even in the case of Sapo vs Sunmonu (supra) relied upon by the Respondent, the Supreme Court has recognized and restated the law that a judgment obtained against a dead person is a nullity. Therefore, the judgment of this Court delivered on 24/11/2017, 30 days after the death of the original Respondent, Mrs. Kehinde Abimbola, was delivered without jurisdiction, as the Court lacks the requisite vires to determine the right of a person not before it, but in a grave. The consequence is that the said judgment is a nullity, and I so declare.

What then is the effect of a null judgment? A null judgment is a judgment which has no legal consequence whatsoever, and a person affected by such a judgment is entitled, ex debito justitiae, to apply to have it set aside. This is what the Applicant has done in this application.

A Court of record has the inherent jurisdiction to set aside its judgment in the following circumstances, i.e., where the judgment was obtained by fraud or deceit either in the Court or of one of the parties, when the judgment is a nullity, in which case a person affected is entitled ex debito justitiae to have it set aside, when the Court was obviously misled into giving the judgment under the belief that the parties consented to it, where the judgment was given in the absence of jurisdiction and whereby the procedure adopted, the judgment is deprived of any legitimate adjudication. See Chime & Anor vs. Ude & Ors (1996) LPELR-848 (SC); Alao vs. A.C.B. Ltd (2000) LPELR- 408(SC); Dingyadi vs. INEC (supra); Ugba vs. Suswam (2014) LPELR-22882 (SC).

In the instant application, the judgment was given in the absence of jurisdiction over Mrs. Kehinde Abimbola, who lost her legal personality at death, and therefore rendered a nullity. This Court has the inherent power and jurisdiction to set aside its judgment which has been declared a nullity or was given without jurisdiction or obtained by fraud. Issues 2 & 3 are accordingly resolved in favour of the Appellant/Applicant. Having declared the judgment of this Court in Appeal No. CA/L/815/2015 delivered on 24/11/2017 a nullity, I hereby set aside the said judgment. No order is made as to cost.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the ruling of my learned brother, MUHAMMAD IBRAHIM SIRAJO, JCA and I agree with the reasoning and conclusions of my Lord in the said ruling. The ruling is on all fours with the ruling of my Lord in the sister case in Appeal No: CA/L/815A/ 2015 in respect of which I have also made my contribution. It is axiomatic that in like cases, the decision is the same-de similibus idem estjudicium I therefore adopt my contribution in CA/L/815A/2015 wherein I stated that in view of the status of a dead person as one that has laid down his legal personality, and one that has no rights or interest, a Court of law has no business dealing with the dead person’s rights or interests and where it does so inadvertently as in this case, its judgment is a nullity. I therefore in agreement with my learned brother, set aside the judgment of the Court. I too make no order as to costs.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading in draft, the ruling just delivered by my learned brother, Muhammad Ibrahim Siraio, JCA. I agree with the judicial reasoning and conclusions reached on the issues raised in this appeal, which I adopt as my own.

There is ad idem between the parties that whereas the original respondent in Appeal No. CA/L/815/2015 (Mrs. Kehinde Abimbola) ceased to be numbered among the living on 25/11/17, this Court delivered judgment 30 days later on 24/10/2017. But whereas the Applicant has accused the Respondent’s counsel of concealing the fact of Mrs. Abimbola’s death from the Court, the later countered that the former was undoubtedly aware of her death as a member of the Applicant’s staff was present at the interment on 3/11/17. This buck-passing or trading of blame is needless.

By Order 15 Rule 1 of the Rules of this Court, the responsibility of drawing the Court’s attention to the death of a party lies on the counsel representing that party, in this case, the Respondent’s counsel.

But the legal status of a judgment delivered after the death of one of the parties without any order of substitution is a crucial consideration that trumps any concerns as to who failed or neglected to inform the Court of the death of that party, or whether an application to set aside the said judgment for being a nullity was brought outside the 14 days stipulated in Order 6 Rules 12 of the Court of Appeal Rules 2016 in force at the time. To my mind, the time or manner in which the Court becomes aware that its judgment is plagued by a fundamental vice that renders same liable to be set aside is of very little moment.

There is no gainsaying that a dead person ceases to have legal personality from the moment of death (See IN RE OTUEDON (1995) NWLR (PT. 392) 655 at 667). A judgment delivered in favour of or against a dead person who has not been substituted constitutes a nullity: OLUFEAGBA v ABDUR- RAHEEM (2009) LPELR-2673(SC) and SAPO v SUNMONU (2010) 11 NWLR (PT. 1205) 374.

This Court (or any Court for that matter) is entitled ex debito justitiae to set its judgment that is a nullity or made without jurisdiction. See ATTORNEY GENERAL BENDEL STATE v AGBOFODOH (1999) 2 NWLR (PT. 592) 476, SKYE BANK v RISIKATU (2018) LPELRU4250 (CA) and APC v NDUUL & ORS (2017) LPELR-42415 (SC). A judgment classified as a nullity is one that is destitute of legal force or effect, one which is treated as if it was never made or given. See WEST AFRICAN AUTOMOBILE & ENG. CO. LTD v AJANAKU (1972) U.I.L.R. 335 and BUSARI & ORS v OSENI (2018) LPELR-46635(CA). Thus, even though rules of Court are meant to be obeyed, where an application to set aside a judgment that is a nullity is brought outside the period stipulated in the Rules of Court without any prayer seeking for extension of time, this Court cannot shut its eyes to the fact of nullity of its judgment and will, in an appropriate case, depart from its rules in order to accommodate the application in the interest of justice as provided in Order 25 Rules 2 and 3 of the Court of Appeal Rules 2021.

This seems to me an appropriate case for this Court to depart from its rules, and I hereby affirm my concurrence with the ruling setting aside the judgment of this Court delivered on 24/11/2017 in Appeal No. CA/L/815/2015: Mainstreet Bank Registrars Ltd v Mrs Kehinde Abimbola. I equally abide by the consequential orders.

Appearances:

Deborah Ogedengbe. For Appellant(s)

Paul I. Okoh. For Respondent(s)