MR. ANTHONY EZIUZOR v. THE FEDERAL ATTORNEY GENERAL, MINISTRY OF JUSTICE & ORS
(2018)LCN/12401(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of March, 2018
CA/E/228/2014
RATIO
COURT AND PROCEDURE: WHETHER THE COURT CAN CONSOLIDATE MATTER AND PROCEDURE
“It is the norm in our legal procedure that, depending on the circumstances of a case, the Court can suo motu make an order for the consolidation of matters/motions where it finds it expedient to do so. This is to save cost and time. But, unless there is some common question of law and facts, it will usually not be ordered. I am of the view that it is at the Courts’ discretion to consolidate cases and matters OKWUAGBALA V IKWUEME (2011) ALL FWLR Pt. 563 Pg. 1887 SC; ALL NIGERIA PEOPLE’S PARTY V USMAN (2009) ALL FWLR (Pt. 463).” PER RITA NOSAKHARE PEMU, J.C.A.
JURISDICTION: COURT OF CO-ORDINATE JURISDICTION
“It is trite that Courts of coordinate jurisdiction cannot set aside the judgment of another Court of its rank in the hierarchy of Courts. Where a judgment was obtained by fraud, it is the judge or other judges of the Court that delivered the judgment that has power to set it aside; in this case, the Federal High Court. The State High Court lacks power to set aside judgment rendered by a Federal High Court. Therefore, it will be safe to say that the lower Court was right in her ruling to have also declined jurisdiction. It is important to note that while the Appellant 1st relief confer jurisdiction on the Federal High Court the other reliefs divest her of jurisdiction. In the case of the State High Court, the 1st relief of the Appellant divests the Court of the requisite jurisdiction, while the Court has the power to entertain the other reliefs.” PER RITA NOSAKHARE PEMU, J.C.A.
JURISDICTION: THE IMPORTANCE OF JURISDICTION
“Now, it cannot be overemphasized that the bedrock of any adjudication by a competent Court of record is jurisdiction, and the lack of it can be very foundationally disastrous. It affects the very foundation of every cause of action before the Court. Courts are creatures of statutes and the statute or Constitution that created them prescribes and circumscribes and regulates these Courts. SKYE BANK PLC VS IWU 2017, 16 NWLR. Part 1590 Page 24 @ 139. OBIUWEUBI V C. B. N. (2011) 7 NWLR (PT. 1247) 465; ONUORAH V K. R. P. C. (2005) 6 NWLR (PT. 921) 393; UTIH V ONOYIVWE (1991) 1 NWLR (PT. 166) 166; MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341…Jurisdiction is a threshold issue that goes to the root of a matter. It is so vital that it can be raised at any point even for the first time on appeal. Where a Court decides on a matter without jurisdiction, such decision will amount to a nullity and of no effect. In considering the issue at hand, the question of the jurisdiction of the Federal High Court and State High Court come to play. It must be borne in mind that it is the law that confers jurisdiction on a Court. In determining whether a Court has jurisdiction to entertain a matter, certain factors needs to be considered: the parties before the Court, the subject matter and the reliefs claimed by the Plaintiff/Claimant. ” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
MR. ANTHONY EZIUZOR
(For himself and on behalf of Joseph Uchechukwu Eziuzor Family) Appellant(s)
AND
1. THE FED. ATTORNEY GEN. MINISTRY OF JUSTICE
2. THE FEDERAL REPUBLIC OF NIGERIA
3. NATIONAL DEPOSIT INSURANCE CORPORATION
4. ASSURANCE BANK LTD Respondent(s)
RITA NOSAKHARE PEMU, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the decision of the Anambra State High Court, Onitsha Judicial Division, delivered on the 5th day of February 2014 in suit No. 0/17/2011 and presided over by Hon. Justice P. C. Obiora.
BRIEF STATEMENT OF FACTS
The suit, the subject matter of this appeal was instituted by writ of summons dated 27th January 2011 in which the Appellant (as Plaintiff in the Court below) prayed for the following viz;
i. AN ORDER setting aside on ground of fraud, that part of the criminal case No. FBFMT/L/Z11/3C/97 which made title over the property otherwise known as and called No. 2 Residency Drive (Now Park lane) G. R. A. Onitsha liable to forfeiture to the Federal Government of Nigeria.
ii. A DECLARATION that the Plaintiff is the owner in possession and entitled to the grant of certificate of Occupancy of the property otherwise known as and called No. 2 Residency Drive (Now Park lane) G. R. A. Onitsha.
iii. A PERPETUAL INJUNCTION to restrain the defendants, their servants, agents and/or privies from in any manner whatsoever interfering with the ownership/possession of the said property or doing any act inconsistent with the Plaintiff’s right, possession or ownership of the property.
iv. #2, 000 000.00 damages for trespass on the said property. – Page 1 – 2 of the Record of Appeal.
When the Appellant came to the State High Court, it was to set aside the order of the Federal High Court in that it had no jurisdiction to entertain same as it has to do with the issue of forfeiture of land.
The 1st and 2nd Respondents (as 1st & 2nd Defendants in the Court below) filed a motion on notice challenging the jurisdiction of the Court – pages 334 of the Record of Appeal.
The 3rd & 4th Respondents (as 3rd & 4th Defendants in the Court below) also filed a notice of preliminary objection to the jurisdiction of the Court on these grounds viz;
a) The issue of ownership of the land in dispute in this case is caught by the judgment of the Federal High Court and Court of Appeal which ordered the said land to be forfeited to the federal Government of Nigeria.
b) This case is tainted by the doctrine of Res judicata.
c) The Court cannot overturn the decision of the Court of Appeal relating to forfeiture of the land in dispute. Page 362 – 363 of the Record of Appeal.
The Appellant filed a counter affidavit to the motion of the 1st & 2nd Respondents and a reply to the Preliminary Objection of the 3rd & 4th Respondents.
After the parties argued their respective applications, the lower Court upheld the preliminary objection of the 3rd and 4th Respondents and granted the application of the 1st and 2nd Respondents.
The Appellant is dissatisfied with the decision of the lower Court hence, this appeal.
Consequent upon this, the Appellant filed a Notice of Appeal on the 28th of March 2014 encapsulating seven (7) Grounds of Appeal – Pages 637 – 645 of the Record of Appeal.
The Appellant filed his brief of argument on the 13th of March 2015, but same was deemed filed on the 1st of June 2017. It is settled by B. C. Uzuegbu, Esq.
The 1st & 2nd Respondents filed their brief of Argument on the 6th of November 2015. It is settled by Mrs Nkoli Amadi Awa.
The 3rd & 4th Respondents filed their joint briefs of argument on the 21st of April 2016. Same was deemed filed on the 1st of June 2017. It is settled by S. E. Elema Esq.
On the 1st day of February 2018, the Appellant as well as 3rd & 4th Respondents adopted their brief of arguments. The brief of the 1st & 2nd Respondents was deemed argued pursuant to the Provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules 2016.
The Appellant distilled six (6) issues for determination from the Grounds of Appeal. They are:
3.01 ISSUE NO 1
Whether the decision is not in clear breach of Section 36 and 37 of Anambra State High Court Law Cap 66 Revised Law of Anambra State, 1991 which barred all judges from moving to their new postings with files except suits which had reached defence stage or upon which an assignment order was duly granted by the Chief Judge. GROUND 1.
3.02 ISSUE NO 2
Whether the inordinate delay of over 217 days between the final addresses of counsel in the matter and the delivery of judgment by the learned trial judge did not occasion a miscarriage of justice to the Appellant as the Court appears to have lost contact with submissions before him during the oral final addresses. GROUND 2.
3.03 Is it justifiable for the learned trial judge to consolidate Motion No. 0/664/2011 of the 1st & 2nd Respondents filed on 17/10/2011 and the preliminary objection in 0/218M/2011 of the 3rd Respondent filed on 1/6/2012 suo motu and proceed to judgment. GROUND 3
3.04 Can the learned trial Court enter judgment on the merits as it did in the instant case against Appellant without hearing at least one witness that is front loaded and hearing having not commenced but based on a preliminary objection praying the Court to strike out the matter by the Respondents? GROUND 4.
3.05 Between the Federal High Court and the State High Court, which Court has the jurisdiction to entertain matters relating to land and its forfeiture in the circumstances of the instant case? GROUND 5.
3.06 Whether the victim of fraud perpetrated in an earlier trial has no right of action against the trial in a subsequent suit even if he was not a party in the earlier suit and was letter of apology not tendered to the victim of the fraud in the instant case? GROUND 6.
The 1st & 2nd Respondents distilled (3) three issues for determination from the Grounds of Appeal. They adopt issues one and two as formulated by the Appellant in his brief of argument and seek to argue them together.
Issue No. 3 of the Respondents is :
WHETHER THE INORDINATE DELAY OF OVER 217 DAYS BETWEEN THE FINAL ADDRESSES OF COUNSEL IN THE MATTER AND THE DELIVERY OF JUDGMENT BY THE LEARNED TRIAL JUDGE DID NOT OCCASION A MISCARRIAGE OF JUSTICE TO THE APPELLANT AS THE COURT APPEARS TO HAVE LOST CONTACT WITH SUBMISSIONS BEFORE HIM DURING THE ORAL FINAL ADDRESSES.
The 3rd & 4th Respondents distilled five issues for determination from the Grounds of Appeal. They are:
1) WHETHER THE COURT WAS RIGHT TO HAVE DECLINED JURISDICTION TO ENTERTAIN THE SUIT.
2) WHETHER THE COURT ERRED BY SUO MOTU CONSOLIDATING THE APPLICATIONS OF THE 1ST & 2ND RESPONDENTS AND THAT OF THE 3RD & 4TH RESPONDENTS CHALLENGING JURISDICTION.
3) WHETHER THE ALLEGED DELAY OF 217 DAYS IN DELIVERING JUDGMENT OCCASIONED ANY MISCARRIAGE OF JUSTICE ON THE PLAINTIFF.
4) WHETHER THE DECISION OF THE COURT DECLINING JURISDICTION CAN BE CONSIDERED AS JUDGMENT OF THE MERITS SIMPLY BECAUSE IT WAS CALLED ‘JUDGMENT’.
5) WHETHER THE COURT ERRED IN LAW BY DELIVERING ITS DECISION AFTER AN ADMINISTRATIVE TRANSFER OF THE COURT WITHIN THE SAME STATE.
The issues distilled by the 3rd & 4th Respondents seem to be an adoption in essence of the Appellant’s issues for determination.
I shall consider this appeal based on the Appellants issues for determination in their brief of argument.
ISSUE NO 1
It is the Appellants’ contention that the Hon. Chief Judge of Anambra State had directed that all suits at the stage of defence will accompany any Presiding Judge to his new posting for further hearing, but that other part-heard matters may upon application, be assigned to such honourable judges to conclude in their present Judicial Divisions.
He submits that the matter was pending before Hon Justice P. C. Obiora sitting at Onitsha High Court, that after the Respondent raised a preliminary Objection after pleadings were filed and exchanged, the judge was transferred after the annual vacation in September 2013 to head the Aguata Judicial Division. However, the matter was not re-assigned to another judge to hear same de novo.
The file of the case for re-assignment to another judge was kept with the Court for 217 days. All efforts to retrieve the file for re-adoption failed. None of the parties applied for assignment Order.
On the 3rd of February 2017, the Appellant was served with a hearing Notice, dated 29th January 2014 which showed that the Court fixed the case for hearing at Onitsha. It fixed the hearing date for 5th February 2014. On that day, despite appeals from the Appellant’s counsel to intimate the Court of the impropriety of the hearing, the matter was on that date mentioned and the judgment was read.
That this occasioned to the Appellants miscarriage of Justice.
ISSUE NO 2
The Appellant submits that parties after orally addressing Court, adopted their final addresses on the 1st of July 2013. The case was adjourned to the 24th of July 2013 for Ruling.
That on 3rd of February 2014 (a period of 217 days having passed between 1/7/2013 when the Ruling was reserved and 5/2/2014 when ‘Judgment’ was delivered), the parties orally addressed the Court on the 1st of July 2013. That the Court has lost its articulation owing to the inordinate delay in delivering its judgment, as it was delivered outside the 90 days period. That the Appellant sued as the brother to the original owner of the land, but the learned trial judge kept saying that the Appellant is the son of the trial Judge – Pages 625 lines 7 – 9 of the Record of Appeal.
That what the lower Court did was instead of considering what the applicants applied for, entered judgment on the merits. That what the Respondent prayed for was for Ruling and not Judgment. That what the 1st & 2nd Respondents prayed for was for ‘An Order striking out this suit for want of jurisdiction’.
That the 3rd Respondent prayed the Court for ‘An order of the honourable Court striking out the suit for lack of jurisdiction’. That for the lower Court to have delved into the merits caused the Appellants miscarriage of justice.
ISSUE NO 3
The Appellant submits that the lower Court has no right to consolidate the motions suo motu, as the parties did not pray nor consented for consolidation; that the issue of consolidation was not in the contemplation of the parties.
Submits that the Appellant was entitled to be heard before the decision to consolidate both applications was arrived at; He was not afforded the opportunity of being heard, and this was an infringement of his right to fair hearing. Urges Court to set aside the judgment.
ISSUE NO 4
The Appellant submits that the lower Court erred when it entered judgment on the merits against the Appellant, without hearing at least one witness that is front loaded and having not commenced but based on a preliminary objection praying the Court to strike out the matter by the Respondents.
That after pleadings were filed and exchanged; the Respondents brought a preliminary objection on the 17th of October 2011 and 1st of June 2012 respectively. It was based on want of jurisdiction.
Submits that what the lower Court should have done is to rule on the preliminary Objection and not to enter final judgment on the merits, which amounts to final determination of the rights and obligations of the parties in a case. Submits that what the lower Court did, was a violation of the principle of natural Justice.
ISSUE NO 5
Submits that it was because the Court below based its decision on the original pleading, that it arrived at the decision which he did. That, in the instant case, the Court below dwelt on the original pleading which no longer defines the issue for trial. That both the Federal High Court and the State High Court had chased them away, but the State High Court has jurisdiction to entertain the matter. That the lower Court was in error to have chased him away.
ISSUE NO 6
Submits that it is the victim of the fraud that is in a position to approach a Court subsequently to set aside a judgment obtained by fraud against his interest, and not the parties who acquiesced in the fraudulent trial.
RESOLUTION OF ISSUES
ISSUE NO 1
From records, it can be easily discerned that the presiding Judge P. C. Obiorah was sitting on assignment at the High Court of Anambra State of Nigeria – Onitsha Judicial Division, Holden at Onitsha on the 5th day of February 2014 when it delivered the Ruling, the subject matter of this appeal. Having delivered the said Ruling on ‘assignment’ the Court cannot be heard to have been in breach of any law particularly the Provisions of Sections 36 & 37 of the Anambra State High Court Law Cap 66, Revised Laws of Anambra State 1991.
Before the Learned trial Judge was transferred from Onitsha Judicial Division to Aguata Judicial Division, arguments had been taken regarding the preliminary objections raised by the two sets of Respondents, and it was reserved for Ruling on the 1st of July 2013 – Pages 616 – 618 of the Record of Appeal.
The annual vacation came in and the learned trial judge was transferred in September 2013.
From records, all parties adopted their written submissions regarding their respective preliminary objections and counter affidavits and the matter was adjourned for Ruling.
The bane of the Respondent’s preliminary objection was that the lower Court has no jurisdiction to entertain the matter. No evidence was taken.
To say that the act of the lower Court caused miscarriage of justice to the Appellant is misconceived. The Court was entitled to entertain the threshold issue of jurisdiction first.
This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 2
From records, in respect of the preliminary objections, the lower Court did not take any evidence as all processes had been frontloaded. No witnesses were examined. The Ruling was on whether the lower Court had jurisdiction to entertain the matter before it.
In this matter, I must emphasise that no oral evidence was taken. The matter was still at its preliminary stage.
Now, it cannot be overemphasized that the bedrock of any adjudication by a competent Court of record is jurisdiction, and the lack of it can be very foundationally disastrous. It affects the very foundation of every cause of action before the Court.
Courts are creatures of statutes and the statute or Constitution that created them prescribes and circumscribes and regulates these Courts. SKYE BANK PLC VS IWU 2017, 16 NWLR. Part 1590 Page 24 @ 139. OBIUWEUBI V C. B. N. (2011) 7 NWLR (PT. 1247) 465; ONUORAH V K. R. P. C. (2005) 6 NWLR (PT. 921) 393; UTIH V ONOYIVWE (1991) 1 NWLR (PT. 166) 166; MADUKOLU V NKEMDILIM (1962) 2 SCNLR 341.
Simply put, the lower Court pronounced thus :
“The result is that I also resolved this issue against the plaintiff. This Court is not competent to entertain the reliefs in the claim. I am satisfied that the two issues I have considered have adequately taken care of this suit.
Following there from, I hold that this suit is incompetent and the Court lacks the jurisdiction to entertain same, I uphold the preliminary Objection. Consequently, I hereby strike out the suit for lack of jurisdiction.”
In all, for the Appellant to say that there was inordinate delay in the delivering of the Ruling is a misconception.
Again, it is a misconception to allude to the fact that there was a breach of fair hearing because the Court entered judgment. This is because the Ruling was in respect of a threshold issue that needed no oral evidence. To say that the Appellant suffered miscarriage of justice cannot be substantiated.
I resolve this issue in favour of the Respondents and against the Appellant.
ISSUE NO 3
I am of the view that there is no hard and fast Rules regarding the issue of consolidation.
It is the Appellant’s grouse that the consolidation by the lower Court of Motion No: 0/664M/2011 of the 1st & 2nd Respondents and filed on 17th of October 2011 and preliminary objection in 0/218M/2011 of the 3rd Respondent filed on 1/6/2012 suo motu is not justified.
It is the norm in our legal procedure that, depending on the circumstances of a case, the Court can suo motu make an order for the consolidation of matters/motions where it finds it expedient to do so. This is to save cost and time. But, unless there is some common question of law and facts, it will usually not be ordered. I am of the view that it is at the Courts’ discretion to consolidate cases and matters OKWUAGBALA V IKWUEME (2011) ALL FWLR Pt. 563 Pg. 1887 SC; ALL NIGERIA PEOPLE’S PARTY V USMAN (2009) ALL FWLR (Pt. 463).
Particularly where it finds that the matters in question have the same common questions of law or facts; the rights to relief are claimed in respect of or arise out of the same transaction or series of transactions, and indeed for other reasons that seem expedient.
Decidedly, orders for consolidation made suo motu cannot be questioned unless there is a travesty of rules governing the particular matter, or where it occasioned miscarriage of justice.
The Appellant has not been able to establish how the act of the learned trial judge in consolidating the two preliminary objections has amounted to miscarriage of justice occasioned to the Appellant.
It suffices in law, that the learned trial judge adverted his mind to all the issues arising from the consolidated suits and/or motions.
A cursory look at the Ruling of the learned trial judge, it is apparent that he took into cognizance all the issues raised by the parties in their respective processes before it delivered a considered Ruling. He could not have done more.
This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 4
I need not re-emphasize the fact that the matter before the trial Court had to do with preliminary objections that challenged jurisdiction. There was therefore no need to field any witness. A Court can be divested of its jurisdiction either by virtue of the parties before it or the subject matter before it, and indeed the reliefs as endorsed on the writ of summons and Statement of Claim – OSUN STATE GOVT. VS DALAMI NIG LTD. (2007) ALL FWLR (Pt. 365) 438. This was a clear case of the Court stating in limine, that it has no jurisdiction to entertain a matter.
This matter is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 5
It is clear that the learned trial judge declined jurisdiction to entertain the matter in respect of which preliminary objections were raised by the respective sets of Respondents.
The Ruling delivered by the learned trial judge on the preliminary objections was one where he upheld the preliminary objection raised. The Ruling was not based on the merits or antecedents of the case.
A cursory look at the relief of the appellant at the lower Court showed that it is to set aside the judgment of the failed Bank tribunal. The Onitsha High Court lacks the jurisdiction to set aside a decision of a Court of coordinate jurisdiction.
To do that would amount to its sitting on appeal on that Court’s decision. The Failed Banks Tribunal is akin to a Federal High Court by virtue of the Provisions of Section 3 (1) of the Tribunal (Certain Consequential Amendment etc.) Decree of 1999. The said judgment was affirmed by the Court of Appeal, Kaduna Division. The Respondents had submitted in Paragraph 7.01 of their brief of argument that the Appellants’ predecessor in title – Mr. Joseph U. Eziuzor had unsuccessfully tried to reverse the order of forfeiture of the land in dispute.
One would have expected the Appellant to take the course of appealing the Court of Appeal Judgment by going to the Supreme Court instead of approaching the Onitsha High Court ostensibly to overturn the decision of the Court of Appeal.
The main claim at the lower Court seem to me to be that for an order setting aside of the judgment of the Federal High Court, which is not possible. Both Courts are of coordinate Jurisdiction.
Jurisdiction is a threshold issue that goes to the root of a matter. It is so vital that it can be raised at any point even for the first time on appeal. Where a Court decides on a matter without jurisdiction, such decision will amount to a nullity and of no effect. In considering the issue at hand, the question of the jurisdiction of the Federal High Court and State High Court come to play. It must be borne in mind that it is the law that confers jurisdiction on a Court. In determining whether a Court has jurisdiction to entertain a matter, certain factors needs to be considered: the parties before the Court, the subject matter and the reliefs claimed by the Plaintiff/Claimant.
The Appellant in this suit had argued that the lower Court failed to consider the judgment of the Federal High Court declining jurisdiction to entertain the Appellant’s matter while delivering her ruling. The pertinent question to ask is whether the Federal High Court has jurisdiction to entertain the reliefs of the Appellant?
In my view, the answer is in the negative. The Appellant sought the Court to set aside her own judgment and grant a declaratory relief as to title to land. The Federal High Court has jurisdiction to set aside her own judgment on the proof of allegation of fraud, but lacks jurisdiction to grant declaratory reliefs as to forfeiture and title to land. Therefore, the Federal High Court was right to have declined Jurisdiction.
On the other hand, the State High Court was also right to have declined jurisdiction. Although, the Appellant had argued that the law confers jurisdiction on State High Court as regards to title to land. I agree with the Appellant on that. But the 1st leg of the reliefs sought by the Appellant at the Court below was to set aside part of the judgment in suit NO FBFMT/L/2011/3C/97 which was delivered by the Failed Bank Tribunal. The Tribunal is no longer in existence, and its powers had been subsumed by the Federal High Court, subject to the provisions of Section 251 of the 1999 Constitution.
It is trite that Courts of coordinate jurisdiction cannot set aside the judgment of another Court of its rank in the hierarchy of Courts. Where a judgment was obtained by fraud, it is the judge or other judges of the Court that delivered the judgment that has power to set it aside; in this case, the Federal High Court. The State High Court lacks power to set aside judgment rendered by a Federal High Court. Therefore, it will be safe to say that the lower Court was right in her ruling to have also declined jurisdiction. It is important to note that while the Appellant 1st relief confer jurisdiction on the Federal High Court the other reliefs divest her of jurisdiction. In the case of the State High Court, the 1st relief of the Appellant divests the Court of the requisite jurisdiction, while the Court has the power to entertain the other reliefs.
Let me quickly point out the proper procedure the Appellant ought to have taken to free himself out of this self-inflicting predicament.
Where a judgment of a Court was obtained by fraud, the proper thing to do is to file a fresh action before the Court that delivered the judgment to set it aside. The main and only relief in such action is fraud and the pleadings should set out in paragraphs the particulars of the fraud. No other relief should be joined with it.
Upon setting the judgment aside by the Court that delivered it, the Appellant can now successfully seek for declaratory reliefs as to title and forfeiture before a State High Court which has jurisdiction to do so. This was not done in this matter.
This issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NO 6
I cannot but resonate the fact that what the learned trial judge did was to divest itself of the jurisdiction to entertain the matter before it, thereby upholding the “Preliminary Objections” brought before it. He did not delve into the merits of the case; neither did he decide the main case on the merits.
Therefore this issue No. 6, whereby the Appellant queried whether the victim of fraud perpetrated in an earlier trial has no right of action against the trial in a subsequent suit even if he was not a party in the earlier suit, and whether the letter of apology not tendered to the victim of the fraud in the instant case, would amount to monstrous invitation to this honourable Court to delve into what the lower Court had said it has no jurisdiction to entertain.
This Court would resist that temptation. This is because this issue is a matter to be considered at the hearing of the substantive case and not at a portal where the lower court has declined jurisdiction. It makes the trial court functus officio and I so hold.
Moreso, if there ever is a relief bordering on fraud, it must be for fraud only. I adopt the reasoning of Uwais, JSC in ANATOGU V IWEKA (1995) 8 NWLR (Pt. 415) 547, where he laid down the procedure to be followed when the issue of fraud comes up. I shall reproduce same verbatim viz; I think the dicta of James L. J. in FLORER VS LLODY (NO. 1) (1877) 6 CHD 297 @ 301 describes succinctly the course to be followed in a review case, when he said of a review for fraud; I agree with what has been said by the master of The Rolls that in the case of a decree (or judgment as we call it now) being obtained by fraud there always was power, and there still is power, in the Courts of law in this country to give adequate relief. But that must be done by a proceeding putting in issue that fraud, and that fraud only.
In the Nigerian case of SPANISH ENG. CO. LTD V EZENDUKA (2002) 1 NWLR (PT. 748) 469 @ 493, it was Salami JCA, who held inter alia that, “Such a party can only seek for the judgment to be set aside by bringing another action and putting the question of fraud directly in issue and leading evidence in support thereof. It must be the only issue in connection in that suit.”
It is correct to say that assuming the trial Court was minded to delve into the merits of the case, the present suit, the subject matter of this appeal is dented by irregularities as it is a combination of reliefs meant for the Federal High Court and that meant for the State High Court. I must stretch it further by stating that the Appellant did not join the alleged fraudulent person in the present suit as a party, which suit is subject matter of this appeal.
I adopt the submissions of the 1st & 2nd Respondents that fraud not having been established against them, and the Appellant having failed, refrained and neglected to make the FRANCIS NZEKWUSI (his vendor) a party to this suit/appeal he cannot allege fraud against the Respondent.
This issue is resolved in favour of the 1st & 2nd Respondents and against the Appellant.
The appeal fails and same is dismissed.
The Ruling of Honourable Justice P. C. Obiora delivered on the 5th of February 2015 in suit No. O/17/2011 is hereby affirmed.
IGNATIUS IGWE AGUBE, J.C.A.: The draft of the lead judgment just delivered by my learned brother, RITA NOSAKHARE PEMU, JCA was made available to me before now. I am in tandem with the reasoning and conclusion reached therein to the effect that the instant appeal has no merit whatsoever.
Additionally, that it should be dismissed. In this regard and more, I also dismiss the appeal.
JOSEPH TINE TUR, J.C.A.: I had the privilege of reading a draft copy of the ?decision? of my learned colleague, Rita Nosakhare Pemu, JCA and I concur with the decision.
Appearances:
B. C. Uzuegbu, Esq.For Appellant(s)
Mrs. Nkoli Amadi Awa (Mrs) for 1st and 2nd Respondents.
S.E. Elema, Esq. for 3rd and 4th Respondents.For Respondent(s)
