NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (NIPSS) KURU v. KRAUS THOMPSON ORGANISATION & ORS
(2015)LCN/7945(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of July, 2015
CA/L/703/2008
RATIO
PRACTICE AND PROCEDURE: NULLITY IN LAW; THE EFFECT OF NULLITY IN LAW
In SALEH v MONGUNO (2006) 15 NWLR (PT.1001) 316; (2006) LPELR 2992 SC 37 – 38 paras F-D, the Apex Court, PER OGUNTADE JSC held:
“A nullity is in law a void act, an act which has no legal consequence. The act is not only bad, and as was stated by Denning L.J. in UAC Ltd. v. Macfoy (1962) 3 ALL ER 1169, is incurably bad. A nullity is in law a void act; an act which has no legal consequence. In that regard, a proceedings which has been declared a nullity is void and without any legal effect or consequence whatsoever. Just as it does not confer any legal rights or title whatsoever, it does not impose obligation or liability on anyone or make any party liable to suffer any penalty or disadvantage…”
The position of the law was restated in ABUBAKAR & ORS V. SAIDU USMAN NASAMU (2010) LPELR 7826 SC, where ADEKEYE JSC echoed thus:
“A nullity in law is a void act, an act which has no legal consequence. A proceeding which has been declared a nullity is void and without legal effect or consequence whatsoever. It does not confer any legal right whatsoever, or it does not impose any obligation or liability on anyone…”
See also OKAFOR v A-G ANAMBRA STATE & ORS [1991] 6 NWLR (PT 200) 659. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT: JURISDICTION; THE JURISDICTION OF THE COURT TO SET ASIDE ITS OWN DECISION THAT IS A NULLITY
Moreso, it is settled law beyond dispute that a court is competent and possesses the inherent jurisdiction to set aside its own decision that is a nullity. This it can do, either on the application of a party or suo motu by the court itself. In DINGYADI v. INEC (2010) LPELR 952 (SC) at 35 paras D-E, the Supreme Court, PER MOHAMMED JSC, held:
“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 party or even suo motu by the Court itself” See also MARK v. EKE (2004) 5 NWLR (PT. 865) 54; EKE v. OGBONDA (2006) 18 NWLR (Pt.1012) 506. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (NIPSS) KURU Appellant(s)
AND
1. KRAUS THOMPSON ORGANISATION
(of One Water Street, White Plains, 1060 and Branch office at Route 100, Milwood, New York 10546)
2. ZENITH BANK PLC
(Formerly, ZENITH INTERNATIONAL BENCH LTD)
JOS BRANCH, BEACH ROAD
JOS, PLATEAU STATE
3. FIRST BANK OF NIGERIA PLC
MAIN BRANCH
JOS, PLATEAU STATE
4. ACCESS BANK PLC
(Formerly EQUITY BANK OF NIGERIA LTD)
JOS BRANCH, MURTALA MOHAMMED WAY
JOS, PLATEAU STATE Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against part of the ruling of Pedro, J. of the High Court of Lagos State delivered on 7th July, 2006. The fact of the case is that on 13th May, 1996, the 1st Respondent herein as Claimant obtained a default judgment at the lower court against the Appellant. On 27th May, 1996, the Appellant filed a motion on notice asking the court to set aside the said default judgment but the court on 29th November, 1996 delivered its ruling striking out the Appellant’s motion. The Appellant as Defendant appealed against the said ruling of the lower court to this Court vide an Amended Notice of Appeal dated 4th December, 1998. However, the Appellant’s appeal was dismissed on 2nd June, 1999 for failure to file its Brief of Argument but the appeal was subsequently relisted on 25th January, 2000 vide a ruling of Court and the appeal was heard on its merit and judgment delivered in favour of the Appellant on 18th January, 2001. Meanwhile, the 1st Respondent, dissatisfied with the ruling relisting the appeal, filed a Notice of Appeal dated 2nd March, 2000 to the Supreme Court.
It also filed another Notice of Appeal dated 8th February, 2001 challenging the judgment of this Court of 18th January, 2001. By virtue of this Court’s judgment of 18th January, 2001, it was ordered that the Appellant’s application dated 29th May, 1996 be heard de novo before another judge of the trial court. Moreover, the Supreme Court gave judgment in favour of the 1st Respondent on 7th May, 2004 in respect of the Notice of Appeal setting aside the ruling of this Court on 25th January, 2000. Whilst the 1st Respondent’s appeal was pending at the Supreme Court, the trial court, Per Pedro J. heard and determined the application of 27th May, 1996 de novo and on 28th July, 2003 the court delivered its ruling setting aside the judgment of 13th May, 1996. Subsequent upon the judgment of the Supreme Court, the 1st Respondent filed a motion ex-parte at the lower court for a Garnishee Order Nisi attaching the accounts of the Appellant due to the default judgment it obtained on 13th May, 1996.
The Garnishee Order Nisi was granted by the lower court on 1st November, 2005. The Appellant thereafter, filed a motion on notice dated 15th November, 2005 to participate in the Garnishee proceedings and discharge the order nisi. On 7th July, 2006, the trial court delivered its ruling and held that the judgment of the court of 13th May, 1996 came alive by virtue of the Supreme Court’s judgment of 7th May, 2004. The Court also terminated the Garnishee proceedings for non-compliance with condition precedent and lack of jurisdiction. Dissatisfied with the part of the ruling of the trial court revalidating the judgment of 13th May, 1996, the Appellant vide a Notice of Appeal dated 2nd of August, 2006 and filed 8th August, 2006 appealed against the ruling of the court.
In compliance with the rules of court, the Appellant filed an Amended Brief of Argument dated 05/02/2014 and filed 07/02/2014 but deemed properly filed 13/02/2014 and settled by P.A. Akubo SAN of Akubo & Co as well as an Amended Reply Brief dated 06/05/2014 and filed on 08/05/2014. 1st Respondent’s Further Amended Brief of Argument is dated and filed 18/02/2014 but settled by O.T Opara (Mrs) of Messrs Rickey Tarfa & Co.
Appellant formulated two issues for determination thus:
1. Whether upon dispassionate consideration of the Affidavit evidence and having regard to the entire circumstances of the case, the learned trial judge was right in holding and coming to the conclusion that the judgment of 13th May,
1996 was still valid and subsisting (notwithstanding the Ruling of 28th July, 2003 setting same aside) on the ground that the Judgment had come alive vide the Judgment of the Supreme Court dated 7th May 2004 having regard to the principle of stare decisis. (Grounds 1, 2, 3, 4 and 5).
ALTERNATIVELY
Whether upon a careful evaluation of Affidavit evidence and having regard, to the entire circumstances of this case, the learned trial Judge was correct in his holding and coming to the conclusion that the Judgment of 13th May, 1996 subsequently set aside on 28th July, 2003 was still valid and subsisting on ground that same has been resuscitated by the Judgment of the Supreme Court dated 7th May, 2004 vide the principle of stare decisis. (Grounds 1, 2, 3, 4 and 5).
2. Whether the learned trial judge had the jurisdiction to revive, restore and/or validate the Judgment of 13th May, 1996 having subsequently set aside same vide a Ruling dated 28th July, 2003 on the ground that the Supreme Court Judgment of 7th May, 2004 had nullified every step taken by the Court. (Grounds 3 and 6).
The two issues formulated by the 1st Respondent are virtually the same as those formulated by the Appellant. 1st Respondent’s counsel ought to have adopted the issues formulated by the Appellant as there are no discernible differences in the issues as formulated. It is therefore obvious that parties are ad idem on the issues for determination in respect of this appeal.
ISSUE ONE
On issue one, Appellant’s counsel while referring to the ruling of the trial court on the 7th July, 2006 submitted that the learned trial judge made pertinent findings and arrived at far reaching conclusions regarding the status of the judgment of 13th May, 1996 which was subsequently set aside on 28th July, 2003 having regard to the judgment of the Supreme Court delivered on 7th May, 2004. Counsel submitted that it is apparent that the principle of stare decisis was the raison d’etre behind the conclusions of the trial court. He further submitted that in practical demonstration of its acceptance of the ruling of the lower court by Pedro J. delivered on 28th July, 2003 (setting aside the judgment of 13th May, 1996); the 1st Respondent did not file an appeal against the said ruling. It is also the submission of counsel that nowhere in the judgment of the Supreme Court of 7th May, 2004 is it shown that the Supreme Court was aware of the fact that the judgment of 13th May, 1996 had already been set side (vide the ruling of 28th July, 2003) let alone making any pronouncements thereof or giving necessary orders/directions. Learned counsel contended that it is a self inflicted conundrum whereby the 1st Respondent pretended as if all was well. Appellant’s counsel submitted that inasmuch as the judgment of the Supreme Court of 7th May, 2004 did not directly address the fact that the judgment of the lower court dated 13th May, 1996 had been set aside vide a ruling delivered on 28th July, 2003 let alone making appropriate consequential orders, it is presumptuous and speculative to conclude that the judgment of 13th May, 1996 had come alive by virtue of the judgment of the Supreme Court.
He then argued that there is nowhere in the judgment of the Supreme Court whereby the ruling of 28th July, 2003 was specifically invalidated or nullified, as the ruling was not the subject matter of the Appeal before the Supreme Court. He submitted that there was uncontroverted Affidavit evidence to the effect that the judgment of the lower court dated 13th May, 1996 had been set aside by Pedro J. vide his ruling of 28th July, 2003 which has not been appealed against much less invalidated. He cited A-G ANAMBRA STATE v. A-G FEDERATION (2005) 9 NWLR (PT 931) 572 at 615; RE: DIAMOND BANK LIMITED (2002) 17 NWLR (PT 795) 120 at 134; CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & 2 ORS v. BASSEY EBONG EKPO (2008) 2 SCNJ 307 at 325; MOBIL OIL (NIG) LTD v ASSAN (1995) 8 NWLR (PT 412) 129; MILITARY GOVERNOR OF LAGOS STATE v OJUKWU & ANOR (1986) 1 NWLR (PT 18) 621. Counsel then submitted that in the hierarchy of the court system, the Supreme Court has no jurisdiction to make an order that will ignore or by-pass the constitutional position of the Court of Appeal and that Supreme Court has no direct link with the State High Courts in the judicial process. He relied on AKINPELU v. ADEGBORE (2008) 4 SCNJ 220 at 234; EKANEM EKPO OTU v. ACB INTERNATIONAL BANK PLC (2008) 1 SCNJ 189 at 202 – 203; OLOWU v. ABOLORE (1993) 5 NWLR (PT 293) 255; ONYEKWELI v. INEC (2009) 9 NWLR (PT 1136) 13 at 30 to submit that the supervening ruling of the lower court dated 28th July, 2003 which set aside the judgment of 13th May, 1996 remains valid and subsisting.
He further contended that it is not in doubt that the principle of stare decisis is an integral part of our jurisprudence and by that principle; the judgment of the Supreme Court is binding on all other courts in the land. He cited DALHATU v. TURAKI (2003) 15 NWLR (PT 843) 310 at 336 before submitting that the principle of stare decisis is not in issue here and that the principle applies only if the facts, circumstances and issues decided in the earlier case are the same or similar to those in the later case wherein it is sought to apply the doctrine and that accounts for why this court in several decisions in election cases including that of ACTION CONGRESS v. JANG (2009) 4 NWLR (PT 1132) 475 at 509 refused to follow the decisions of the Supreme Court in YUSUF v. OBASANJO (2003) 16 NWLR (PT 847) 554 and AKEREDOLU v. AKINREMI (1985) 2 NWLR (PT 10) 787 regarding the issue of time within which to file election petition. He also referred to OKOYE v C.P.M.B LTD (2008) 15 NWLR (PT 1110) 335 at 362. Counsel finally urged this court to resolve this issue in the Appellant’s favour.
Respondent’s counsel submitted that the cases of ACTION CONGRESS v. JANG (supra); UKPO v. ADEDE (supra) will not avail the Appellant as in the instant appeal, the ruling of 28th July, 2003 has been set aside by the trial court in view of the Supreme Court judgment of 7th May, 2004 so that there is no need for the 1st Respondent to appeal against the ruling of 28th July, 2003. He also submitted that the case of A-G ANAMBRA STATE v. A-G FEDERATION (supra) cited by the Appellant will not avail it because the case is not on all fours with the instant Appeal. Counsel submitted that the case is one where the original jurisdiction of the Supreme Court was invoked by a State of the Federation as well as other 35 States whereas in this case, an appeal emanated from the High Court through the Court of Appeal before getting to the Supreme Court. It is also the submission of counsel that the cases of RE: DIAMOND BANK LIMITED (supra); CALABAR CENTRAL CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD & 2 ORS v. BASSEY EBONG EKPO (supra); MOBIL OIL (NIG) LTD v. ASSAN (supra); MILITARY GOVERNOR OF LAGOS STATE v OJUKWU & ANOR (supra) will not avail the Appellant as the ruling of 28th July, 2003 was set aside by the trial court who made it. Counsel further submitted that while he agrees with the Appellant’s Counsel that the Supreme Court has no direct link with the State High Courts in the judicial process and therefore has no jurisdiction to make orders that will have direct impact; that in this case, the Supreme Court has not by virtue of the judgment of 7th April, 2004 made any directive to the High Court that made the decision based on the judgment aforesaid.
Counsel then submitted that the case of AKINPELU v. ADEGBORE (supra) will not avail the Appellant as the case dealt with the issue of an application (refused) for leave to appeal by the Court of Appeal and a similar application made to the Supreme Court. Counsel further distinguished the other cases cited by the Appellant, to wit, EKANEM EKPO OTU v. ACB INTERNATIONAL BANK PLC (supra); OLOWU v. ABOLORE (supra); ONYEKWELI v. INEC (supra) from this case. Counsel then submitted that by virtue of the judgment of the Supreme Court, the lower court had no jurisdiction to make the order it made on 28th July, 2003 and that the Court of Appeal which gave the lower court the power to make the order also had no power to do so. He submitted further that the lower court then has the jurisdiction to rescind the order so as to restore the status quo. He cited AUGUSTINE BASSEY ENE v. CHIEF ASUQUO ASIKPO v. ANOR (2010) 10 NWLR (PT 1203) 477 at 517 paras A – B. Citing MCFOY v. UAC (1962) AC 152 at 160; SKEN CONSULT v. UKEY (1981) 1 S.C 6 at 9; NASIRU v. BINDAWA (1996) 1 NWLR (PT 961) 360, he submitted that when a thing is void, it does not exist, you cannot put something on nothing, it will not stand. He further contended that when an appeal has been entered at the Supreme Court, the trial court as well as the Court of Appeal has no power to make any order in respect of the said matter which the Supreme Court was seized of. He cited D.Y.S TROCCA VELSESIA & CO v. OSAGHAE (2008) ALL FWLR (PT 413) 1337 paras E – G; NIKORO v. BURKE (2005) ALL FWLR (PT 241) 323 paras F – G. Counsel submitted that in the instant case, the Appellant herein was aware of the 1st Respondent’s appeal at the Supreme Court and was aware when the appeal was entered at the Supreme Court. He also submitted that on the same day the Supreme Court delivered judgment, the Appellant hurriedly went to the lower court to refile the application to set aside the judgment of 13th May, 1996, but that the Supreme Court’s Judgment nullified and or voided the Court of Appeal’s decision of 18th January, 2001 relisting the Appeal and also subsequently every step taken after the relisting of the appeal was voided. Counsel referred to BLACKS LAW DICTIONARY 6th Edition on the meaning of “void”. He also cited AJIBOYE v. ISHOLA (2006) 13 NWLR (PT 998); LABOUR PARTY v. INEC (2009) 6 NWLR (PT 1137) 336 paras G – A to submit that once a judgment is a nullity, it is a judgment that is not only bad, but incurably bad and completely void. He further submitted that the doctrine of judicial precedent (stare decisis) requires all subordinate courts to follow the decisions of Superior Court even where the decision is obviously wrong. He referred to 7UP BOTTLING CO LTD v. ABIOLA & SONS NIGERIA LTD (1995) 3 NWLR (PT 383) 257; OSHO v. FOREIGN FINANCE CORPORATION (1991) 5 SC 59; OGBORU v. IBORI (2006) 17 NWLR (PT 1009) 542. Counsel finally submitted that the trial court had no option than to set aside her decision of 28th July, 2006 and he then urged this court to resolve this issue in favour of the 1st Respondent.
In reply, Appellant’s counsel submitted that in as much as the 1st Respondent has not filed any appeal against the ruling of 28th July, 2003 which set aside the judgment of 13th May, 1996, there is no valid and subsisting judgment of the trial court which it can lawfully appropriate. Counsel argued that once a judgment is set aside, it becomes ineffectual. He cited IBRAHIM v. OJONYE (2012) 3 NWLR (PT 1286) 108 at 127. Counsel submitted that one vital point that the 1st Respondent consistently overlooked in its argument is that the Supreme Court was never informed before, during or after its judgment of 7th May, 2004 that the judgment of the lower court earlier delivered on 13th May, 1996 was subsequently set aside vide the ruling of 28th July, 2003. He cited SAEBY JERNSTOBERI M.F. A/S v. OLAOGUN ENT (1999) 14 NWLR (PT 637) 128 at 144 to submit that the Supreme Court does not entertain complaint directly against a decision of a High Court. Counsel further submitted that in furtherance to the arguments expressed in its Appellant brief. He further submitted that another vital point the 1st Respondent overlooked is that there was no formal application for stay of proceedings that would have stopped the lower court from proceeding with the ruling of 28th July, 2003 but instead, the 1st Respondent characteristically passed the buck to the Appellant that the latter was aware of the 1st Respondent’s appeal at the Supreme Court and yet proceedings went on at the trial court. Counsel submitted that the 1st Respondent fully participated in the proceedings before the lower court resulting in the ruling of 28th July, 2003 and cannot cry over spilled milk. He further submitted that estoppel by conduct operates against the 1st Respondent as provided for in Section 151 of the Evidence Act (now Section 169 of the Evidence Act 2011). He referred to JOE IGA & ORS v. EZEKIEL AMAKRI & ORS (1976) 11 SC 1 AT 12 – 13; ARCHBOLD EBBA & ORS v. CHIEF WARRI OGODO & ORS (2000) 10 NWLR (PT 675) 387 at 402; DR (MRS) AIZE, IMOUHKOME OBAYAN v. UNIVERSITY OF ILORIN & 3 ORS (2005) 15 NWLR (PT 947) 123 at 146 – 147; ALHAJI OLALEKAN v. WEMA BANK PLC (2006) 13 NWLR (PT 998) 617 at 625 – 626.
In response to the argument of the 1st Respondent that once an appeal is entered at the Supreme Court, both the trial court and the Court of Appeal have no power to make any order in respect of the matter in which the Supreme Court is siesed of; counsel submitted in rebuttal that the time the Appeal was entered is a question of fact and the 1st Respondent has not produced any evidence or proof to the effect that as at 28th July, 2003 when the judgment of 13th May, 1996 was set aside by the trial court, the appeal has been entered at the Supreme Court. On the issue of judicial precedent, he submitted that same does not exist in vaccuo or in isolation of the facts of the case and that for a decision of the Supreme Court to be binding on all courts with respect to a particular case, the facts and issues pronounced upon by the Supreme Court must be on all fours with the case under consideration by the lower court. He cited ODUGBO v. ABU (2001) 14 NWLR (Pt 732) 45 at 89, 91 & 100. From the arguments of counsel expressed above, it is apparent that this case is fraught with avoidable twists and turns which ought not be the case. It is obvious from the summary of the facts of this case earlier reproduced in the course of this judgment that the controversy in dispute arose from the different interpretations and applications of orders judgment by learned counsel to the parties of the consequence of the decision of the Supreme Court of 7th May, 2004 in relation to the facts and circumstances of this case.
The genesis of the controversy arising in the instant case seems to stem from when this Court by virtue of its ruling dated 25th January, 2000 granted an order relisting the Appellant’s Appeal which had earlier been dismissed by the Court due to failure of the Appellant to file its brief. The 1st Respondent filed an appeal to the Supreme Court against that ruling vide a Notice of Appeal dated 2nd March, 2000 but hearing of the appeal continued as the 1st Respondent at the Court of Appeal did not file any application for stay of proceedings. Consequently, this court delivered its judgment on 18th January, 2001 in favour of the Appellant to the effect that the Appellant’s application of 27th May, 1996 that was struck out by the trial court should be heard de novo before another trial judge. It was on this basis that the hearing was commenced de novo before Pedro J. who subsequently delivered a ruling granting the Appellant’s application to set aside the default judgment granted in favour of the 1st Respondent by the trial court on 13th May, 1996. Meanwhile, 1st Respondent had also appealed against the Court of Appeal’s judgment of 18th January, 2001 to the Supreme Court. It neither filed a stay of execution of the Court of Appeal’s judgment nor filed a stay of proceedings of the trial before Pedro J. pending the determination of the appeal before the Supreme Court.
From the foregoing, it is apparent that the proceedings conducted de novo before Pedro J. as it relates to the hearing of the Appellant’s application to set aside the default judgment of 18th May, 1996 emanated from the decision of the Court of Appeal of 18th January, 2001 which in itself was brought to life by the Court’s Ruling of 25th January, 2000 which was successfully appealed against. It is this ruling that forms the bedrock of every other steps taken by both Court of Appeal and the trial court. The life and continued existence of the ruling of this Court of 25th January, 2000 relisting the Appellant’s Appeal was terminated upon the delivery of the Supreme Court’s decision of 7th May, 2004. As the learned trial judge noted at Page 378 of the records:
“the implication of the Supreme Court’s judgment dated 7th May, 2004 is that the Defendant/Applicant lost its right of Appeal at the Court of Appeal same having been dismissed, I agree in toto with the argument proffered by the Learned Counsel for the Respondent that the Supreme Court Judgment of 7th May, 2004 has nullified every step taken by this court since the suit was remitted by the Court of Appeal without exception and as if those steps were never taken by this court.”
The above conclusion of the trial judge is unassailable and cannot be faulted in any way. Every proceeding/hearing conducted consequent upon the appeal being relisted becomes a nullity. The decision of this Court of 18th January, 2001 which the Appellant relied upon, in light of the Supreme Court’s judgment does not confer any right whatsoever on the Appellant, once same has been nullified by virtue of the judgment of the Apex Court in that regard. Therefore, both the hearing of the appeal by this court and the decision of 18th January 2001 as well as the proceedings before (the trial court) hearing the Appellant’s application upon which the decision of 28th July 2003 was made becomes a nullity. In SALEH v MONGUNO (2006) 15 NWLR (PT.1001) 316; (2006) LPELR 2992 SC 37 – 38 paras F-D, the Apex Court, PER OGUNTADE JSC held:
“A nullity is in law a void act, an act which has no legal consequence. The act is not only bad, and as was stated by Denning L.J. in UAC Ltd. v. Macfoy (1962) 3 ALL ER 1169, is incurably bad. A nullity is in law a void act; an act which has no legal consequence. In that regard, a proceedings which has been declared a nullity is void and without any legal effect or consequence whatsoever. Just as it does not confer any legal rights or title whatsoever, it does not impose obligation or liability on anyone or make any party liable to suffer any penalty or disadvantage…”
The position of the law was restated in ABUBAKAR & ORS V. SAIDU USMAN NASAMU (2010) LPELR 7826 SC, where ADEKEYE JSC echoed thus:
“A nullity in law is a void act, an act which has no legal consequence. A proceeding which has been declared a nullity is void and without legal effect or consequence whatsoever. It does not confer any legal right whatsoever, or it does not impose any obligation or liability on anyone…”
See also OKAFOR v A-G ANAMBRA STATE & ORS [1991] 6 NWLR (PT 200) 659. Learned Counsel to the Appellant had argued in his reply brief that the Supreme Court was never informed before, during and after its judgment of the fact that the lower court had already delivered a judgment setting aside the default judgment of 13th May, 1996 coupled with the fact that the 1st Respondent fully participated in the proceedings before the lower court and therefore estoppel by conduct operates against the 1st Respondent as provided under the Evidence Act. While I find as a fact from the records that it seems that the Supreme Court was not informed of the judgment of the lower court of 28th July, 2003, I am however unable to see the relevance such information will be to the Apex court in relation to the matter before it then.
Meanwhile, I am at a loss at the Appellant’s contention that because the 1st Respondent participated in the proceedings before the lower court, he is estopped from raising any issue thereon and also on his argument that, the 1st Respondent failed to bring an application for stay of proceeding before the lower court pending the decision of the Supreme Court nor appealed against the ruling of the lower court of 28th July, 2003. Let me hasten to state here that the fact that the 1st Respondent participated in the proceedings before the lower court does not confer validity on an otherwise null proceeding. Even if I am inclined to agree with the Learned Appellant’s counsel that a formal application for stay of proceedings would have stopped the lower court from proceeding with the ruling of 28th July 2003, there is abundant evidence on record as evident from the records particularly at Pages 48 to 54 of the Additional Records of Appeal that the 1st Respondent filed two Notices of Appeal against both the ruling of this Court relisting the appeal as well as against the Court of Appeal’s judgment of 18th January, 2001. The date of filing of the Notices indicates that the Appellant was aware of the pending appeal filed by the 1st Respondent at the Supreme Court long before the trial court commenced hearing de novo pursuant to the decision of the Court of Appeal. See page 246 of the record which shows that the matter came up for the first time on 2nd April, 2001 before it was eventually assigned to Pedro J. More so, I find as a fact that the Appellant as Respondent at the Supreme Court actively participated in the hearing of the appeal. Appellant was duly represented by counsel and brief was filed on its behalf. See Pages 122 to 127A of the records. Ipso facto, Appellant’s counsel has not denied the fact that he was not aware of the proceedings before the Supreme Court as at the time the proceedings leading to the trial court’s ruling of 28th July, 2003 started.
Therefore, Appellant’s counsel ought to have known the implication of conducting a proceeding founded on a decision of a court that has been appealed against and of which an appeal therefrom is properly before an Appellate court. As earlier stated, the consequence of the successful appeal by the 1st Respondent is that the Court of Appeal’s judgment of 18th January, 2001 is deemed a nullity having been founded upon a ruling of the court that has been set aside by the Supreme Court.
Let me hasten to say here that, contrary to the argument of counsel, the doctrine of stare decisis only applies in this case to the extent that the learned trial judge recognises that by virtue of the Supreme Court’s judgment which set aside the Court of Appeal’s ruling of 25th January, 2000, it was as if it never had any power to hear de novo the Appellant’s application to set aside the default judgment of 13th May, 1996. In the words of the trial judge at Page 378 of the records:
“On the contrary, I am of the humble view and I so hold that the judgment of 13th May, 1996 came alive when the Supreme Court by its judgment dated 7th May, 2004 attached as Exhibit ‘B’ to the Counter Affidavit of the Respondent overturned the decision of the Court of Appeal. It was the said decision of the Court of Appeal which gave this court the power to hear de novo the application filed by the Defendant/Applicant to set aside the judgment dated 13th May, 1996”
Put in another way, what the learned trial judge merely did was to recognise the fact that the decision that gave her power to hear the matter has been set aside by the Supreme Court, so that whatever the trial judge has done before the decision of the Supreme Court in relation to the matter becomes legally inconsequential.
Having regard to the foregoing, I resolve the first issue in favour of the 1st Respondent.
ISSUE TWO
Turning to the second issue Appellant’s counsel noted the facts that, according to him, represent common ground between the parties. Counsel urged this court to take into account the fact that in its motion ex-parte dated 10th October, 2005 resulting in the garnishee order of 26th October, 2005, the 1st Respondent did not mention or refer to, or rely on the judgment of the Supreme Court of 7th May, 2003; also that the 1st Respondent did not bother to mention to the court the fact that the judgment of the lower court on 13th May, 1996 had actually been set aside subsequently vide the ruling of 28th July, 2003 but that all that the 1st Respondent did was to anchor it ex-parte application on the judgment of 13th May, 1996 knowing fully well that the same had been set aside. Counsel submitted that it was needlessly presumptuous of the lower court to have relied on the judgment of the Supreme Court of 7th May, 2004 as having nullified every other step taken by the Court including its ruling of 28th July, 2003. He further submitted that before the judgment of the Supreme Court was delivered, there was a supervening ruling of the lower court of 28th July, 2003 which expressly and unequivocally set aside the judgment of 13th May, 1996; that the implication is that there was a fait accompli and that once a judge determines a matter, he becomes functus officio. He referred to UKACHUKWU V UBA [2005] 18 NWLR (PT 956) 1 at 60 CA. It is also the submission of counsel that a court of law is not a charitable institution to grant a relief not sought. He cited UGO v. OBIEKWE (1989) 1 NWLR (PT.99) 566; MAKANJUOLA v. BALOGUN (1989) 13 NWLR (108) 192; NNEJI v. CHUKWU (1998) 3 NWLR (PT.81) 184; OKEOWO & ORS v. MIGLIORE & ORS (1979) 11 SC 138; VEEPEE IND LTD v. COCOA IND LTD (2008) NWLR (PT 1105) 486 at 512.
Appellant’s counsel also submitted that jurisdiction is radically fundamental in that it is the soul and the very life and blood of proceedings so that without jurisdiction, any proceeding no matter how well conducted is invalid, null and void and of no effect whatsoever. He placed reliance on DREXEL ENERGY AND NATURAL RESOURCES LTD & 2 ORS v TRANS INTERNATIONAL BANK LTD & 2 ORS (2008) 12 SCNJ 566 at 599; ACTION CONGRESS v INEC (2007) 18 NWLR (PT 1065) 50 at 71; OLORUNTOBA-OJU v ABDULRAHEEM [2009] 13 NWLR (PT 1157) 13 at 124; AREMO v ADEKANYE (2004) 7 SCNJ 218 at 230; OKOLO v UNION BANK OF NIG LTD (2004) 3 NWLR (PT 859) 87 at 108; NNPC v ORHIOWASELE [2013] 13 NWLR (PT 1371) 211 at 224. Learned SAN urged this court to resolve this issue in favour of the Appellant.
Responding, Counsel to the 1st Respondent while adopting his argument canvassed in issue one, submitted that a court has the inherent power to set aside its judgment or order which is a nullity, without the affected party necessarily resorting to appealing against the judgment or order. He cited BELLO v INEC & 2 ORS [2010] 8 NWLR (Pt. 1196) 342; DINGYADI & ANOR v INEC & 2 ORS (No 1) [2002] 18 NWLR (PT.1224) 1. Counsel submitted that the lower court’s ruling of 28th July, 2003 setting aside the judgment of 13th May, 1996 drew its power from the nullified decision of the Court of Appeal of 25th January, 2000 was a nullity to which the Court that made the order (in its inherent jurisdiction) can set aside and that it is not necessary to appeal from it. He relied on EKE v OGBONDA [2006] 18 NWLR (PT 1012) 526 paras A-D; ONWUKA v ONONUJU [2009] 11 NWLR 184 – 185 at ratio 9 and 10; FUTECH, YOLA v FUTLESS [2008] 12 NWLR (PT 938) 8.
Counsel submitted that the Appellant cannot argue that the 1st Respondent did not mention or refer to the Supreme Court judgment at the time of the Garnishee proceedings ex parte because the court was aware of the judgment by virtue of the fact that the same court referred to same in its ruling of 6th May, 2005. Counsel further submitted that argument of Appellant’s counsel in relation to the issue of stay of proceedings should be discountenanced as same is not one of the grounds of appeal of the Appellant and that an application for stay of proceedings does not give strength or legality to a void proceeding. He referred to E.S & C.S LTD v NMB LTD [2005] 7 NWLR (PT.924) 233; SARAKI v KOTOYE (1992) 9 NWLR (PT.264) 345. Counsel submitted further that the cases cited by the Appellant on the issue of the court not being a charitable institution does not avail the Appellant as the issue does not arise in the instant case because the trial court did not grant a relief that was not sought. Counsel referred to BELLO v INEC (supra); DINGYADI v INEC (supra) to submit that the trial court had jurisdiction to set aside its judgment of 28th July, 2003 thereby reviving, resuscitating and revalidating the judgment of 13th May, 1996. Counsel then urged that this issue be resolved in favour of the 1st Respondent.
In reply, Appellant’s counsel submitted that the argument canvassed by the 1st Respondent to the effect that stay of proceedings is not in the ground of appeal is ‘utterly ridiculous’. According to counsel, it seems that the 1st Respondent did not appreciate the arguments of Appellant in the Appellant’s brief on the point. He submitted that the 1st Respondent had claimed that it filed the motion for stay of proceedings but withdrew same and that what was withdrawn no longer existed. Counsel submitted further that the so-called motion for stay of proceedings dated 15th March, 2004 was already belated having been filed after the judgment had already been set aside on 28th July, 2003. Learned counsel insisted that on the authority relied upon by the 1st Respondent, the latter had failed to file any application needed to move the court to set aside a judgment or order that is a nullity. He submitted further that the trial court was incapable and/or lacks the jurisdiction to revive, restore and/or validate the .judgment of 13th May, 1996 having become functus officio after setting same aside vide its ruling of 28th July, 2003. Counsel finally adopted and affirmed his argument in the Appellant’s Amended Brief of Argument.
I think I will take the resolution of this issue from where I stopped in the resolution of the first issue. I have earlier held that by virtue of the judgment of the Supreme Court on 7th May, 2004, every proceedings conducted consequent upon the order of this court relisting the Appellant’s appeal on 25th January, 2000 becomes a nullity having regard to the fact that the order of this court has been set aside. The other proceedings which were “something” before becomes “nothing” as the foundation upon which they were predicated had collapsed. Thus, the hearing and judgment of this court of 18th January, 2001 as proceedings and ruling of the trial court of 28th July, 2003 are legally non-existent. It is as if the judgments were never made. I need not say more. See MCFOY v UAC (1962) 3 ALL ER 1169; (1962) AC 152.
Now the issue at hand turns on the question as to whether the trial court has jurisdiction to revive, restore and/or validate the judgment of 13th May, 1996 having regards to the Supreme Court’s judgment of 7th May, 2004. It is undisputed that it was as a result of the fact that the Appellant’s application dated 27th May, 1996 was set aside by the trial court Per Hunponu-Wusu, J. that the Appellant appealed to this Court. Meanwhile, the Appellant’s appeal was struck out by this court on 2nd June, 1999 but was later relisted vide a ruling of this court delivered on 25th January, 2000 before this court eventually heard the appeal on merit and delivered its judgment on 18th January, 2001 and therein ordered that the Appellant’s application of 27th May, 1996 be heard de novo by another judge of the trial court.
However, at this time the 1st Respondent had not only appealed against the ruling of this Court relisting the Appeal but also appealed against the judgment on the merits of the appeal. By a judgment delivered on 7th May, 2004, the Supreme Court allowed the 1st Respondent’s Appeal and set aside the decision of the Court of Appeal. Now, the implication of the decision of the Supreme Court is that, the Appellant having failed to successfully appeal against the ruling of Hunponu-Wusu J. which struck out the Appellant’s application of 27th May, 1996, the default judgment of the trial court of 13th May, 2006 therefore stands.
Moreso, it is settled law beyond dispute that a court is competent and possesses the inherent jurisdiction to set aside its own decision that is a nullity. This it can do, either on the application of a party or suo motu by the court itself. In DINGYADI v. INEC (2010) LPELR 952 (SC) at 35 paras D-E, the Supreme Court, PER MOHAMMED JSC, held:
“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 party or even suo motu by the Court itself”
See also MARK v. EKE (2004) 5 NWLR (PT. 865) 54; EKE v. OGBONDA (2006) 18 NWLR (Pt.1012) 506.
To this extent, I am of the firm view that the learned trial judge was right when she held that the judgment of the court of 13th May, 1996 ‘came alive’ by virtue of the decision of the Supreme Court of 7th May, 2004. More so, in line with the authorities referred to above, I am also inclined to agree with the Learned Counsel to the 1st Respondent that the trial court has jurisdiction to revive, restore, and/or validate the judgment of 13th May, 1996 after setting same aside vide the ruling of 28th July, 2003 on the ground that the judgment of the Supreme Court of 7th May, 2004 had nullified every step earlier taken by the Court.
I resolve this issue in favour of the 1st Respondent.
Having regards to the foregoing this appeal lacks merit and is hereby dismissed. The ruling of Pedro J. of the Lagos State High Court delivered on 7/07/2006 is hereby affirmed. Cost of (Fifty thousand naira) N50,000 is awarded in favour of the 1st Respondent.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have been privileged to read the draft copy of the lead judgment just delivered by my learned brother A.O. Obaseki-Adejumo JCA.
The issues in contention have been properly and exhaustively addressed and I agree with the reasoning and conclusion reached therein. I have nothing extra to add.
I also order that the appeal be and is hereby dismissed for lacking in merit.
I abide by the consequential orders made in the lead judgment including that of costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I had the opportunity of reading in draft before today the lead judgment just delivered and I agree with the reasoning and conclusion reached therein with nothing useful to add.
Appearances
PA Akubo SAN with M. OzoemenaFor Appellant
AND
O.T. Opara (Mrs) with A.A. Audu
C.A. AnicheleFor Respondent
