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ABBAH v. USMAN & ANOR (2022)

ABBAH v. USMAN & ANOR

(2022)LCN/15940(CA) 

In the Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, February 03, 2022

CA/MK/101/2012

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

ABDUL EL-USMAN ABBAH ESQ APPELANT(S)

And

1. SANI USMAN 2. SIRAJO USMAN RESPONDENT(S)

 

RATIO

THE MEANING OF “JURISIDICTION”

The erudite Law Lord of the Apex Court in the case of DREXEL ENERGY AND NATURAL RESOURCES LTD & ORS V. TRANS INTERNATIONAL (2008) LPELR-962 (SC) has this to say on the meaning of jurisdiction thus:
“…and by jurisdiction, it is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Such authority of the Court is controlled or circumscribed by the Statute creating the Court itself or it may be circumscribed by the condition precedent created by legislation which must be fulfilled before the Court can entertain the Suit. All of the above touch on the legal authority of the Court to adjudicate in the matter.” PER AGUBE, J.C.A.

THE POSITION OF LAW ON THE POWERS OF THE COURT TO SET ASIDE ITS OWN RULING

As can be gleaned from the Issues formulated for the determination of this appeal, there is no doubt that the Issues query the jurisdictional powers of the trial Court to set aside its own ruling. In a bid to understand the jurisdictional powers of the Court be it inherent or statutory, recourse shall be had to the Constitution of the Federal Republic of Nigeria, 1999 (as Amended). Section 6 (1) of the Constitution provides for the judicial powers of the Federation which powers are vested in the Courts to which the section relates. Section 6 (2) vests the judicial powers of the State High Court to which the section relates.​
However, for the State High Court, Section 6 (3) provides that the Courts for the Federation and the States that shall only be designated as superior Courts of records are those created under Section 6 (5) (a)-(i) and for the purpose of clarity, I shall reproduce Section 6 (6) (a) and (b) as follows:
“(6) The Judicial powers vested in accordance with the foregoing provisions of this Section – (a) Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of the Court of law; (b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
Accordingly, the powers and jurisdiction of Courts are provided for in Chapter VII of the Constitution and not to say the least, these powers are wide and far reaching in order to enable the Courts function properly, efficiently and effectively. Again, the rules of Court are very much outstanding in this regard, this is particularly so because through the rules, Courts are imbued with wide powers to perform their statutory and judicial duties. Thus, in CITEC INTERNATIONAL ESTATES LTD & ORS V. JOSIAH OLUSOLA BIODUN FRANCIS & ORS (2014) LPELR-22314 (SC) P.36 PARAS. A-C, the Apex Court opined that:
“…Where a judgment of this Court or an order thereof is adjudged a nullity, a party affected thereby is entitled to have it set aside ex debito justitiae. The Court has inherent jurisdiction or power to set aside its own order or decision made without jurisdiction if such order or decision is in fact a nullity or was obtained by fraud or if the Court was misled into granting same by concealing some vital information or facts.”
Accordingly, the law is settled that all the superior Courts created or established by the Constitution and other statutes possess inherent powers to set aside their judgments/orders in appropriate cases. Howbeit, from the surrounding facts of this case, the question begging for an answer is whether the judgment/ruling of the trial Court delivered on the 7th of December, 2012 was tainted by any jurisdictional shortfall?. My answer is in the negative. This is particularly so because the Defendants/Respondents did not enter appearance after the Writ “Originating Summons” was served on them neither did they enter a Conditional Appearance. They also did not move the Court to set aside the service of the Writ of Summons that was served on them. What they did was to file a Preliminary Objection challenging the jurisdiction of the Court.

The apex Court in the case of HON. MUYIWA INAKOJU & 17 ORS V. HON. ABRAHAM ADEOLU ADELEKE & ORS (2007) 1 SCNJ P.1 AT 142 opined that:
“…as already stated earlier above, the Appellants as Defendants did not enter an appearance after they had been served with the Court processes. They also did not file any Counter-Affidavit in reply to the averments contained in the Affidavit in support of the Plaintiff’s Originating Summons. All they did was to file the Notice of Preliminary Objection, portions of the ruling on which I have already set out above in this judgment. The position of the law is that the Memorandum of Appearance is simply to indicate that the suit will be contested. If therefore, the Defendants fail to enter an appearance, the suit will be treated as undefended and the Plaintiff may proceed to ask for judgment to be entered in his favour or for the case to be set down for hearing. See the cases of BRITISH AMERICAN INSURANCE CO. LTD V. EDEMASILLO (1993) 2 NWLR (PT. 277) 567; ITA V NYONG (1994) 1 NWLR (PT. 318) 56.”
PER AGUBE, J.C.A.

WHETHER OR NOT A PARTY WHO CHOOSES TO EXEMPT HIMSELF FROM COURT PROCEEDINGS WITHOUT SUBSTANTIAL EXCUSE, CAN COMPLAIN OF DENIAL OF FAIR HEARING

The law is trite that a party whom an opportunity is given to be heard but chose not to utilize it by absconding or exempting himself from Court’s proceeding without any substantial excuse, cannot be heard to complain of denial of fair hearing. See the case of OKOYE & ORS V. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD & ORS (1991) 6 NLWR (PT. 199) 501 AT 541; (1991) 7 SCNJ 365; (2005) ALL FWLR (PT. 270) 1995. PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This appeal challenged the ruling of the High Court of Benue State sitting in Gboko and delivered by Hon. Justice A. K. Baaki on the 26th day of November, 2014 whereof the trial Court set aside its own ruling delivered on the 7th of December, 2012 on the grounds that the ruling was entered without jurisdiction having failed to hear the Defendant/Applicant’s application for leave to file his Memorandum of Appearance out of time when same was not ripe for hearing. Dissatisfied with the decision, the Appellant invoked the jurisdiction of this Court by a Notice of Appeal dated and filed on the 28th of November, 2014 predicated on One (1) Ground of Appeal which I reproduce hereunder albeit without its particulars to wit:-
“GROUND OF APPEAL:
GROUND ONE:
Error in law in that the learned trial Judge acted without jurisdiction to set aside its judgment in the original Originating Summons dated the 7th day of December, 2012 by his ruling of 26th November, 2014.

STATEMENT OF FACTS:
The summary of the case is that the Appellant who was the Plaintiff at the trial Court issued an Originating Summons dated 6th October, 2012 against the Respondents who were the Defendants in respect of the interpretation of an alleged Deed of Gift by his late Father to him with regard to the properties known as Plots No.39 and 40, lying and situate at Gandu Aluor way Gboko, Benue State. He prayed for the following reliefs:
i. “An order of this Honourable Court declaring that Plots Nos. 34 and 40 Gandu Aluor Road, Gboko, Plot No. 175 Old Post Office Road, Gboko are owned exclusively by the Plaintiff and cannot be part of late Alhaji Usman Abba’s Estate.
ii. An order of this Honourable Court declaring that the said properties in Issue enumerated in paragraph (i) above cannot be part of late Alhaji Usman Abba’s Estate to be distributed in accordance with Islamic Personal Law.
iii. A declaration that an inclusion or attempted inclusion of the Plaintiff’s properties severally enumerated in the preceding paragraphs, the subject matter of this Suit as part of late Alhaji Usman Abba’s Estate is illegal null and void.
iv. An order of perpetual injunction restraining the Defendants, their agents, privies, representatives or whatever name they may be called from including the Plaintiff’s properties in Issue in this suit as forming part of late Alhaji Usman Abba’s Estate to be distributed among heirs according to the Islamic Personal Law or by any other means.”

The case of the Respondents who were the Defendants at the trial Court is that they filed a Notice of Preliminary Objection dated 13th November, 2012 challenging the jurisdiction of the Court to entertain the Plaintiff’s suit but the trial Court went ahead to strike out the Preliminary Objection when same was not ripe for hearing and entered a default judgment on the 7th of December, 2012. See pages 65-71 of the Record.

It was the case of the Respondents that after the ruling was delivered they filed a Motion on Notice dated 12th December, 2012 for the ruling of the trial Court to be set aside and that the Court should allow the matter be heard on its merit. See pages 40-41 of the Record. The trial Court upheld the Defendant’s Preliminary Objection and set aside its earlier ruling and ordered that the matter be heard on merit. See pages 80-83 of the Records. Dissatisfied with the ruling as earlier stated, the Appellant filed this appeal.

The Record of Appeal was thereafter transmitted and entered in this Court. The Appellant’s Brief of Argument dated and filed on the 2nd of October, 2015 but deemed properly filed and served on the 18th of November, 2020, was settled by A.A. Sule Esq wherein a sole issue for determination was distilled as reproduced hereunder:-
“ISSUE FOR DETERMINATION
Whether the lower Court had the jurisdiction by its order of 26th November, 2014 to set aside the substantive ruling in the matter delivered by him on the 7th day of December, 2012?”

Upon receipt of the Appellant’s Brief of Argument, the Respondent’s Brief of Argument settled by D. A. Sulayman Esq., dated 4th of February, 2021 was filed on the 9th day of February, 2021 but deemed properly filed and served on the 29th of November, 2021 whereof a sole issue was formulated for the determination of this appeal inter alia:
“ISSUE FOR DETERMINATION
Whether the trial Court had jurisdiction to set aside its own default judgment in the circumstances of this case?”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON THE SOLE ISSUE:
The learned Counsel for the Appellant contended that the trial Court lacked jurisdictional competence to set aside the substantive Judgment dated 7th of December, 2012 and that the Respondents were served with Originating Summons and when the matter came up for hearing on the 13th of November, 2012, the learned Counsel for the Appellant observed that the Respondents’ Counsel did not enter any appearance to the Originating Summons. He referred us to pages 63-64 of the Records.

It is the further contention of the learned Counsel for the Appellant that on the 27th day of November, 2012, the matter came up for hearing and the learned Counsel for the Respondents failed to appear in Court upon filing a Preliminary Objection to the suit on the 13th of November, 2012 via a Motion No. GHC/407M/2012 dated the 9th of November, 2012. He maintained that on the 26th of November, 2012, the learned Counsel for the Respondents filed another Motion and that both Motions were struck out as abandoned on the ground that he did not appear in Court to move their applications. He referred this Court to page 64 lines 8-25 of the Records.

Again, the learned Counsel for the Appellant argued that the coast was then cleared for the Appellant to move his Originating Summons upon which ruling was entered for the Appellant. Pages 65-71 were referred to buttress his Case. According to the learned Counsel for the Appellant, this was the position of things up to the stage that judgment was entered for the Appellant. He further cited the authority of HON. MUYIWA INAKOJU & 17 ORS V. HON. ABRAHAM ADEOLU ADELEKE & ORS (2007) 1 SCNJ P.1 AT 142 in submitting that the judgment of the trial Court dated 7th of December, 2012 was not tainted by any jurisdictional vice(s).

He asserted that the learned Counsel to the Defendants/Respondents was in Court on the 7th of December, 2012 when the trial Court delivered its ruling and that just like Rip Van Winkle, he was nowhere to be found afterwards and suddenly resurfaced in Court on the 4th of February, 2013 with a pending application and the Case was adjourned to the 28th of March, 2013. He referred us to pages 71-77 of the Record. Again, citing pages 78-83, he maintained that on the 26th of November, 2014, the substantive ruling that gave birth to this appeal was delivered.

The learned Counsel to the Appellant answered the question posed in the negative as to whether sufficient reasons were furnished by the trial Court to warrant the setting aside of its earlier decision which was in favour of the Appellant and that on the 26th day of November, 2014 after the Order was made, the trial Court adjourned the matter to the 2nd day of February, 2015 for it to be heard on the merit. Still on the above score, he argued that the learned Counsel for the Defendants/Respondents did not file any Memorandum of Appearance even after the second Ruling was delivered.

It is the further contention of the learned Counsel for the Appellant that the ruling of the trial Court delivered on the 26th of November, 2014 was clearly hollow and of no discernable legal import because the learned Counsel to the Defendants/Respondents did not file Counter-Affidavit in defence of their case since Originating Summons is fought exclusively on Affidavit evce. Agidenain, referring us to pages 81-82 of the Record, the learned Counsel to the Appellant submitted that the trial Court did not consider Order 10 Rule 11 of the Benue State High Court (Civil Procedure) Rule, 2007 and went ahead justifying itself on dual pegs jurisdiction and want of fair hearing.

Accordingly, the learned Counsel for the Appellant relied on the authority of MUIZ BANIRE, et. al. THE BLUE BOOK 2015: PRACTICAL APPROACH TO THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULE 2012 3rd EDITION (Lagos: Ecowatch Publication Limited, 2013) ps. 128-129 in submitting that the trial Court did not put any of the matters mentioned above into consideration before setting aside the earlier ruling of 7th December, 2012 neither did he take into cognizance the import of Order 20 Rule 12 of the Benue State High Court (Civil Procedure) Rule, 2007.

It is the contention of the learned Counsel for the Appellant that besides the mere mention of jurisdiction by the trial Court, no particulars as to what effected the ruling was given and that instead, the trial Court alluded to fair hearing. The authority of HON. MUYIWA INAKOJU & 17 ORS V. HON. ABRAHAM ADEOLU ADELEKE & ORS supra was referred to strengthen his case. Flowing from the above, the learned Counsel for the Appellant submitted that the purport of Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended guarantees every citizen of Nigeria the right to fair hearing in the determination of his Civil Rights and Obligations but that it is not in all circumstances that the said right must be exercised for where a party has the opportunity of being heard, he must not fail to utilize same else he cannot be heard to complain of fair hearing. He referred us to the case of VANGUARD MEDIA LTD V. AJOKU (2003) 11 NWLR (PT. 831) 437 in support of the above position of the law.

Relying on paragraph 5 (a) of the High Court of Benue State Practice Direction, 2013, he submitted that the ruling of the trial Court did not show compliance with the above applicable Practice Direction and that the said ruling is bound to be set aside for being in contravention of the above. For the above submission, he cited the case of NIGERIAN AIRWAYS LTD V. CAPT. GODWIN EBOIGBE CA/L/24/85 to buttress his case. He finally urged this Court to allow the appeal, set aside the order of the lower Court and enter judgment for the Appellant and to further dismiss the Respondents’ Application against the Appellant at the trial Court.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON THE SOLE ISSUE:
WHETHER THE TRIAL COURT HAD JURISDICTION TO SET ASIDE ITS OWN DEFAULT JUDGMENT IN THE CIRCUMSTANCES OF THIS CASE?”

The learned Counsel for the Respondents contended that the Appellant is not disputing the fact that the judgment of 7th December, 2012 was on Default of Appearance of the Defendants/Respondents and that there is no dispute that the said judgment was set aside by the trial Court on the 26th day of November, 2014. He maintained that the Appellant’s sole ground of appeal challenges the lack of jurisdiction by the trial Court to set aside its own judgment and not that the setting aside of the Judgment was not rightly made. He further maintained that the case of INAKOJU V. ADELEKE supra which the learned Counsel to the Appellant cited is a principle of law that supports election matters and for setting aside default Judgment and not on jurisdictional power of the Court to set aside its own Judgment.

Relying on the authority of UMUKORO USIKARO & ORS V. ITSEKIRI COMMUNAL LAND TRUSTEES & ORS (1991) 2 NWLR (PT. 172) 150, the learned Counsel for the Respondents submitted that the crux of the suit at the trial Court was on title to land and in view of the above authority, the Respondents would contest the merit and worthiness of the suit. He maintained that the trial Court has the jurisdiction to set aside the default judgment that was granted on the 7th of December, 2012 and that what the Appellant is trying to defend is not only limited to the fact that the judgment was obtained in default of appearance but to obtain a declaratory order to title to land through Originating Summons without calling any oral evidence.

It is the argument of the learned Counsel for the Respondents that the contention of the Appellant at page 15 of his Brief of Argument on the violation of Order 20 Rule 12 of the Benue State High Court (Civil Procedure) Rule, 2007 was uncalled for because the trial Court took into consideration the intent of the above order before setting aside the Judgment. He referred this Court to page 83 of the record in submitting that the trial Court has jurisdiction to entertain and set aside the default judgment granted on the 7th of December, 2012.

On another score, the learned Counsel for the Respondents contended that the findings of the trial Court has not been challenged by the Appellant and to that effect, the finding is deemed accepted. He relied on the authorities of NSIRIM V. AMADI (2016) NWLR (PT.1504) 42, 2016 ALL FWLR (PT.825) 194; ADEDAYO V. BABALOLA (1995) SC; ODJEVWEDJE V. ECHANOKPE (1987) 1 NWLR (PT. 52) 63 to strengthen his case.

Accordingly, the learned Counsel for the Respondents cited the case of SANUSI V. AYOOLA (1992) 9 NWLR (PT.265) 275 in submitting that the decision of the trial Court was validly entered and that the trial Court remains the best Court with jurisdictional potency to consider, vary, review, alter or set aside its own judgment. He further cited the case of EVANS V. BARTLAM (1937) AC 473 in contending that the Trial Court has the inherent jurisdiction to set aside its own Judgment where the conditions have been met by the Appellant.

In concluding their case, the learned Counsel for the Respondents again cited the authority of CITEC INTERNATIONAL ESTATE LTD V. FRANCIS & CO (2014) 2 SC (PT. 11) 118 in submitting that the Appellant’s submissions at page 21 of his Brief of Argument is misconceived. He therefore urged this Court to dismiss the Appeal with heavy cost on the grounds of deliberate time wasting and delay strategy in the determination of the substantive Suit on merit.

RESOLUTION OF ISSUES
Having read through the record and the argument of the respective parties, it is instructive to assert that the issues distilled by the parties are anchored on the jurisdictional competence of the trial Court to set aside its own ruling. Consequently, this appeal shall be determined on the sole issue distilled for determination by the learned counsel to the Appellant to wit:
“WHETHER THE LOWER COURT HAD THE JURISDICTION BY ITS ORDER OF 26TH NOVEMBER, 2014 TO SET ASIDE THE SUBSTANTIVE RULING IN THE MATTER DELIVERED BY HIM ON THE 7TH DAY OF DECEMBER, 2012?”

The erudite Law Lord of the Apex Court in the case of DREXEL ENERGY AND NATURAL RESOURCES LTD & ORS V. TRANS INTERNATIONAL (2008) LPELR-962 (SC) has this to say on the meaning of jurisdiction thus:
“…and by jurisdiction, it is meant the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Such authority of the Court is controlled or circumscribed by the Statute creating the Court itself or it may be circumscribed by the condition precedent created by legislation which must be fulfilled before the Court can entertain the Suit. All of the above touch on the legal authority of the Court to adjudicate in the matter.”

As can be gleaned from the Issues formulated for the determination of this appeal, there is no doubt that the Issues query the jurisdictional powers of the trial Court to set aside its own ruling. In a bid to understand the jurisdictional powers of the Court be it inherent or statutory, recourse shall be had to the Constitution of the Federal Republic of Nigeria, 1999 (as Amended). Section 6 (1) of the Constitution provides for the judicial powers of the Federation which powers are vested in the Courts to which the section relates. Section 6 (2) vests the judicial powers of the State High Court to which the section relates.​
However, for the State High Court, Section 6 (3) provides that the Courts for the Federation and the States that shall only be designated as superior Courts of records are those created under Section 6 (5) (a)-(i) and for the purpose of clarity, I shall reproduce Section 6 (6) (a) and (b) as follows:
“(6) The Judicial powers vested in accordance with the foregoing provisions of this Section – (a) Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of the Court of law; (b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”
Accordingly, the powers and jurisdiction of Courts are provided for in Chapter VII of the Constitution and not to say the least, these powers are wide and far reaching in order to enable the Courts function properly, efficiently and effectively. Again, the rules of Court are very much outstanding in this regard, this is particularly so because through the rules, Courts are imbued with wide powers to perform their statutory and judicial duties. Thus, in CITEC INTERNATIONAL ESTATES LTD & ORS V. JOSIAH OLUSOLA BIODUN FRANCIS & ORS (2014) LPELR-22314 (SC) P.36 PARAS. A-C, the Apex Court opined that:
“…Where a judgment of this Court or an order thereof is adjudged a nullity, a party affected thereby is entitled to have it set aside ex debito justitiae. The Court has inherent jurisdiction or power to set aside its own order or decision made without jurisdiction if such order or decision is in fact a nullity or was obtained by fraud or if the Court was misled into granting same by concealing some vital information or facts.”
Accordingly, the law is settled that all the superior Courts created or established by the Constitution and other statutes possess inherent powers to set aside their judgments/orders in appropriate cases. Howbeit, from the surrounding facts of this case, the question begging for an answer is whether the judgment/ruling of the trial Court delivered on the 7th of December, 2012 was tainted by any jurisdictional shortfall?. My answer is in the negative. This is particularly so because the Defendants/Respondents did not enter appearance after the Writ “Originating Summons” was served on them neither did they enter a Conditional Appearance. They also did not move the Court to set aside the service of the Writ of Summons that was served on them. What they did was to file a Preliminary Objection challenging the jurisdiction of the Court.

The apex Court in the case of HON. MUYIWA INAKOJU & 17 ORS V. HON. ABRAHAM ADEOLU ADELEKE & ORS (2007) 1 SCNJ P.1 AT 142 opined that:
“…as already stated earlier above, the Appellants as Defendants did not enter an appearance after they had been served with the Court processes. They also did not file any Counter-Affidavit in reply to the averments contained in the Affidavit in support of the Plaintiff’s Originating Summons. All they did was to file the Notice of Preliminary Objection, portions of the ruling on which I have already set out above in this judgment. The position of the law is that the Memorandum of Appearance is simply to indicate that the suit will be contested. If therefore, the Defendants fail to enter an appearance, the suit will be treated as undefended and the Plaintiff may proceed to ask for judgment to be entered in his favour or for the case to be set down for hearing. See the cases of BRITISH AMERICAN INSURANCE CO. LTD V. EDEMASILLO (1993) 2 NWLR (PT. 277) 567; ITA V NYONG (1994) 1 NWLR (PT. 318) 56.”

It is therefore instructive to note that on the 13th of November, 2012, when the matter came up for hearing, the learned Counsel for the Defendants/Respondents was not in Court on the grounds of ill health and the matter was adjourned to the 27th of November, 2012. See pages 63-64 of the Records. Again, on the said 27th of November, 2012, the matter came up for hearing and the learned Counsel for the Defendants/Respondents was not in Court but had filed a Notice of Preliminary Objection dated 9th November, 2012 with Motion No. GHC/40M/2012 which were served on the Appellant on the 26th of November, 2012. It was for the above reasons that the trial Court held inter alia:
“The Court has received no communication from the Defendants or his Counsel as to why they are not in Court today. The Preliminary Objection registered as Motion No. GHC/40M/2012 dated 9th November, 2012 as well as Motion No. GHC/448M/2012 dated 22nd November, 2012 and filed on the 26th of November, 2012 are struck out and abandoned.”

The trial Court further held at pages 69-70 lines 21-32 of the Record/Judgment thus:
“Since the above Motions were struck out, the Defendants made no effort to defend the Originating Summons. The effect is that the facts set out in the Affidavit in support of the Originating Summons remain unchallenged and are accepted by the Court as established facts upon which the Court is duty bound to act in resolving the questions in the Originating Summons. See STATE V. OLADOTUN (2011) 5 KLR (PT.297) 1461; NACENN LTD V. BEWAC LTD (2011) 5 KLR (PT.296) 1337. Upon the Plaintiff’s Affidavit evidence before the Court and the Written Address, I find the answers to questions 1 and 2 calling for determination in the Originating Summons in the negative and answer to question 3 in the affirmative. In other words, I answer the three questions in favour of the Plaintiff who has established by Affidavit evidence in the Affidavit in support that he is entitled to the declaration sought. Having found it to be so, the Originating Summons succeeds. It is granted. Accordingly, it is hereby ordered…”

From the foregoing, there is no doubt that the Defendants/Respondents made no effort to defend the Originating Summons served on them and even the three (3) Applications that were filed by them were abandoned. What more could be the reasons for setting aside the earlier ruling? From the record/judgment, the learned Counsel for the Respondents had submitted that the ruling of 07/12/2012 delivered in default of appearance of the Applicant was a nullity due to denial of fair hearing. See page 82 lines 29-31 of the record.

Now, before the Suit came up for hearing on the 13th of November, 2012, the Respondents were served with the Originating Summons and were aware of the date but never entered Appearance and the matter was adjourned to the 27th day of November, 2013. The learned Counsel for the Respondents who refused to enter an appearance and gave no reason whatever for their absence caused the service of applications (Motions) on the Appellant which they also failed to defend and the trial Court had this to say in that regard thus:
“The Court has received no communication from the Defendants or his Counsel as to why they are not in Court today. The Preliminary Objection registered as Motion No. GHC/40M/2012 dated 9th November, 2012; as well as Motion No. GHC/448M/2012 dated 22nd November, 2012 and filed on the 26th of November, 2012 are struck out and abandoned.”

Consequently, having exercised his discretion in striking out those Applications based on the refusal of the Respondents to enter an Appearance and to defend or move their Application, can it be rightly said that the Respondents were denied their right of fair hearing? My answer is No. This is because the law is settled that fair hearing is not a cut and dried principle which parties can always apply in the abstract of their convenience and comfort. It is a principle which is based on the fact placed before the Court, only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless and completely dead outside the facts of the case. See the case of MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI (2005) 19 NWLR (PT. 959) PAGES 243-244 PARA F-A.

The law is trite that a party whom an opportunity is given to be heard but chose not to utilize it by absconding or exempting himself from Court’s proceeding without any substantial excuse, cannot be heard to complain of denial of fair hearing. See the case of OKOYE & ORS V. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD & ORS (1991) 6 NLWR (PT. 199) 501 AT 541; (1991) 7 SCNJ 365; (2005) ALL FWLR (PT. 270) 1995.

On another score, Order 10 Rule 11 of the Benue State High Court (Civil Procedure) Rules, 2007 stipulates that:
“Where Judgment is entered pursuant to any of the preceding rules of this order, a Judge may set aside or vary such judgment on just terms upon an application by the Defendant. The application shall be made within six days, showing a good defence to the Claim and a just cause for the default.”
The learned Author MUI BANIRE in his book titled “THE BLUE BOOK” A PRACTICAL APPROACH TO THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES, 2012, 3RD EDITION (Lagos: Ecowatch Publication Limited, 2013) Pages.128-129 in interpreting Order 10 Rule 11 of the High Court of Lagos State which is in pari materia with Order 10 Rule 11 of the Benue State High Court (Civil Procedure) Rule 2007 noted that:
“…in OTUMBA YOMI NUBI V. SUNGAZ AUTO (NIG) LTD., the High Court of Lagos State, per AKANDE, J (as he then was) it was held that by virtue of Order 10 Rule 11, an application to set aside a judgment in default of appearance must show that the Defendant/Appellant had a good defence. This means he must exhibit to his Affidavit the proposed Statement of Defence and other frontloading Processes. It is through this, that the Court will be in a position to ascertain the presence or otherwise of a good defence…in TENO ENGINEERING LTD V. ADISA, TOBI, JSC in a dictum capable of interpreting Order 10 Rule 11, held as follows: “where there is an application for the Court to set aside its own judgments given in the absence of one of the parties before it, in order to give him the opportunity of being heard, different considerations apply. Among other things, the Court must consider:
1. The reason for the Applicant’s failure to appear at the hearing or trial of the Case in which judgment was given in his absence.
2. Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists.
3. Whether the latter party (i.e in whose favour the judgment subsists) would be prejudiced or embarrassed upon an order for rehearing of the suit being made, so as to render such a cause inequitable and
4. Whether the Applicant’s case is manifestly unsupported. In addition to the foregoing factors, the Court being asked to exercise its discretion to set aside its own judgment must also be satisfied that the Applicant’s conduct throughout the proceedings that is, from the service of the writ upon him to the date of judgment, has been such as to make his Application worthy of a sympathetic consideration. See WILLIAMS V. HOPE RISING VOLUNTARY FUNDS ASSOCIATION (1982) 1-2 SC 145; UGWU V. ABA (1961) ALL NLR 438; DOHERTY V. DOHERTY (1964) NMLR 144.”
It is pertinent to note that the trial Judge did not take cognizance of the above mentioned conditions precedent, particularly the italicized, neither was the provisions of Order 20 Rule 12 of the Benue State High Court (Civil Procedure) Rules, 2007 adhered to in setting aside the default judgment earlier entered in favour of the Appellant. The said order stipulates inter alia:
“Any judgment by default under this order or under any order of these rules shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.”

Accordingly, the issue of jurisdiction is not a sine qua non in this appeal because statutorily as enshrined in the Constitution, Courts have inherent jurisdiction to set aside their Judgment though upon certain conditions that must be satisfied. Thus, from the surrounding circumstances of the case, could it be rightly said that the Respondents met the conditions that were set out above? My answer is in the negative. The rationale being that they were never denied of fair hearing because they had ample opportunity to do their case but failed to show up during proceedings without any reasonable excuse coupled with the fact that they also refused to file Counter-Affidavit to the Originating Summons. On what bases would their purported defence on the merit lie since they never filed any processes from 2012 to 2014 other than the abandoned Preliminary Objection and Motions? To this effect, it is my considered view that the Respondents have not shown satisfactorily that the trial Court erred in law in the compromise of their right of fair hearing and the trial Court was wrong to have set aside its previous ruling dated 7th December, 2012. I say no more.

The sole issue is therefore resolved in favour of the Appellant against the Respondents.

On the whole, this appeal is meritorious and is hereby allowed. The ruling of the trial Court delivered by Hon. Justice A. K. Baaki on the 266 day of November, 2014 is hereby set aside. There shall be no order as to costs as the earlier ruling delivered on the 7th day of December, 2012 in favour of the Plaintiff/Appellant is hereby restored.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft the lead judgment delivered by earned brother HON, JUSTICE IGNATIUS IGWE AGUGE, JCA, and I agree entirely with his reasoning and conclusion. He dealt extensively with the issues canvassed in this appeal, and I will only stress the point made as to whether the lower Court had jurisdiction by its order of 26th November, 2014 to set aside the substantive ruling in the matter delivered by him on the 7th day of December, 2012.

Any judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem fit. The pertinent question is what then are the terms upon which a default judgment may be set aside. Order 20 Rule 12 of the Benue State High Court (Civil Procedure} Rule, 2007 provides thus:
Any judgment by default under this order or under any order of these rules shall be final and remain valid and only be set aside upon application to the judge on the grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.

This appeal seems to rest on the proper construction of the provision of Order 20 Rule 12 supra, whether the considerations provided as to ‘fraud’ ‘non-service’ and lack of ‘jurisdiction’ which are all essential to the application of the rule were complied with. First it is clear that, the issue of fraud and non-service are not in issue especially as it is abundantly established that the originating processes were served on Respondents but they deliberately choose not to enter appearance. Secondly, the jurisdiction of the trial Court was not tainted in any way, as the Respondents were served with the originating summons and were aware of the date but never entered appearance hence the door of fair hearing was shut. It ought to have been shut forever in this case.

It is true and well settled that the Court has an inherent jurisdiction to set aside its own judgment where the conditions have been met by the applicant. These conditions must sufficiently disclose that, the judgment sought to be set aside was obtained on failure to comply with the procedural rules. In the exercise of the powers under the rule, the learned judge ought to have known that he was exercising statutory powers and non-compliance with which rendered his decision nugatory.

Again, it is difficult on the facts of the instant case as disclosed in the record of proceedings to conceive of how any of the considerations outlined above can be resolved in favour of the Respondents. Though the trial judge has discretion, in the event where the learned trial judge fails to consider any of the factors, he cannot be regarded as having exercised his discretion judicially and judiciously and in accordance with Order 20 Rule 12 Supra.

When a party files so contemptuously in the face of law, justice demands that he enjoys the consequences of his act. It is immaterial however sympathetic the cause of action or application may seem. The consideration to set aside the substantive ruling in this matter appears to be contrary to the spirit of Order 20 Rule 12 (supra). The lower Court was thus wrong to set aside its substantive ruling made 7th December, 2012.

For these and other reasons set out in greater details in the lead judgment, I will also allow the appeal and dismiss the ruling of the lower Court delivered by HON. JUSTICE A. K. BAAKI on the 26th day of November, 2014.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I agree with him that this appeal has merits and be allowed. However, for purpose of emphasis, I will make my own contribution. From the record of the Court, the Appellant’s contention is whether the trial Court has jurisdictional powers to set aside its own ruling made on the 7th December, 2012.

It is settled law that the decisions of the Court are final by which is meant that the Court has no jurisdiction to sit on appeal over its decision once delivered. However, the Court has the inherent power to set aside its decisions when same later found to be a nullity or obtained by fraud. See the case of IGWE VS KALU (2002) 14 NWLR (pt.78) 435 AT 455 and UGBA & ANOR V. SUSWAM ORS (2014) LPELR-22882(SC). However, apart from the above grounds, the Court cannot set aside its decision. From the facts of the case, it is obvious that the Appellant was diligent in prosecuting the case because since the inception of the action till judgment was delivered, the Respondent made no appearance before the Court and therefore cannot complain of breach of fair hearing because ample opportunity was given to him to contest the claim but failed to utilized it, fair hearing is about being given an opportunity and he was given.

Therefore, the trial Court was wrong to set aside its decision on grounds of fair hearing without taking into record the previous acts of the Respondent and relevant authorities because jurisdiction is a threshold issue for any Court adjudicating on a matter. A Court must possess the requisite jurisdiction before it can adjudicate over any matter. Without it, the Court is like fish out of water. Absence of jurisdiction renders whatever the Court has done a nullity, no matter how well conducted. See OHAKIM v. AGBASO (2010) 19 NWLR (PT. 1226) 172, AKERE & ORS V. THE GOVERNOR OF OYO STATE & ORS (2012) LPELR-7806 (SC) and SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED V. ISAIAH (2001) 5 SC (PT. 11) 1. Hence, the order made by the trial Court in this matter becomes null and void, thus liable to be set aside.

It is in light of the above reason and the elaborate ones contained in the leading judgment that I too agree that the trial Court was wrong to set aside its own decision. Flowing from above, I too find that the appeal is meritorious and therefore allowed.

Appearances:

A. A. Sule., Esq. For Appellant(s)

D. A. Sulayman Esq. For Respondent(s)