ALH. HASSAN KHALID v. ALH. UMAR ISMAIL & ANOR
(2013)LCN/6621(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of December, 2013
CA/K/256/2012
RATIO
CIRCUMSTANCES WHERE A COURT OF LAW MAY SET ASIDE ITS OWN JUDGMENT
The law is that a court of law can set aside its own judgment or order only in two instances; namely: (i) where it is so empowered by statute to do so; and (ii) under its inherent jurisdiction in specified and certain situations – Yakubu Vs Governor, Kogi State (1997) 7 NWLR (Pt 511) 66, Fada Vs Naomi (2002) 4 NWLR (Pt 757) 318, Ene Vs Asikpo (2010) 10 NWLR (Pt 1203) 477. A court can set aside the decision reached in the judgment or order under its inherent jurisdiction where it is shown that it was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud – Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659, First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt.1216) 247, Dingyadi vs INEC (No 1) (2010) 18 NWLR (Pt.1224) 1, Ede Vs Mba (2011) 18 NWLR (Pt 1278) 236, Adeyemi-Bero Vs Lagos State Property Development Corporation (2013) 8 NWLR (Pt 13560) 238. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A
JURISDICTION: WHETHER MATTERS OF SUBSTANTIVE JURISDICTION MAY BE RAISED AT ANYTIME IN A PROCEEDING
It is matters of substantive jurisdiction that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural irregularity. Matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again – Kwaa Vs Kwakwa 3 WACA 176, Katsina Local Government Authority vs Makudawa (1971) 7 NSCC 119, Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1 and the unreported decision of this court in Appeal No CA/K/5/2006 – Muhammed vs Ajingi delivered on the 12th of February, 2013. This point was elaborately explained by Ayoola, JSC in Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1. His Lordship laid down the guidelines to be followed at pages 31 to 32 where he said thus:
“… This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my opinion, bearing the distinction in mind, appropriate guidelines could be fashioned out as follows: (i) where on the face of the proceedings a superior court is competent, incompetence should not be presumed; (ii) where on the face of the proceedings the court is incompetent, the court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties and if it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings; (iii) where the incompetence of the court is affected by evident procedural defect in the commencement of proceedings and such defect is not dependent on ascertainment of facts, the court should regard such incompetence as arising ex facie; (iv) when the competence of the court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts, the incompetence cannot be said to arise on the face of the proceedings and the issue of fact if properly raised by the party challenging the competence of court should be tried first before the court makes a pronouncement on its own competence, (v) where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for the party who alleges the court’s incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or affidavit in cases commenced by originating summons; (vi) a judgment given in proceedings which appear ex facie regular is valid.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A
WHETHER ISSUES FOR DETERMINATION MUST BE DERIVED GROUNDS OF APPEAL
The law is trite, that in arguing appeals, the argument is founded on the issue for determination, which must be derived from the ground(s) of appeal and which, in turn, must be rooted in the judgment appealed against, that is, on a live issue (not academic) in the said judgment. See the case of OSADARE VS. LIQUIDATOR NIGERIA PAPER MILLS LTD (2012) ALL FWLR (Pt. 652) 1784; AKINDIPE VS. STATE (2012) ALL FWLR (Pt. 638) 805; C.N.E. INVESTMENT NIG. LTD VS. ASCO INV. LTD. (2012) ALL FWLR (Pt. 611) 1588; ALI VS. STATE (2012) ALL FWLR (Pt. 610) 1313; UNILORIN VS. OLAWEPO (2012) 52 WRN 42. PER ITA G. MBABA, J.C.A
JUSTICCE
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria
Between
ALH. HASSAN KHALID Appellant(s)
AND
ALH. UMAR ISMAIL & ANOR Respondent(s)
ITA G. MBABA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of Kano State High Court in Suit No. K/94/2012, delivered by IBRAHIM MUSA KARAYE J on 23/4/2012, where the trial court entered judgment for the Plaintiff’s (Respondents herein), upholding the claims of the plaintiff and granting the monetary award therein. The case was a matter earlier placed on the undefended list for hearing and determination by the learned trial Court. Appellant (who was the Defendant at the court below) was dissatisfied with the decision and so brought this appeal.
At the lower court, the plaintiffs’ claim was for:
a. “The sum of N9,514,000 (Nine Million Five Hundred and Fourteen Thousand Naira) only (being debt owned by the Defendant to the Plaintiff i.e. cheque issue for purchase of Egypt Airline tickets in favour of the Defendant’s customers)
b. Court interest at the rate of 10% till the whole judgment sum is liquidated
c. Cost of filing and prosecuting this suit”.
Upon the Defendant being served with the originating processes of the Suit, placed on the undefended list, he filed a Notice of Intention to Defend the action and a three – paragraphed affidavit in support. The trial court was not impressed by the Notice of Intention to defend, hence the judgment.
But appellant claimed that while the matter was pending at the trial Court, the Respondents dragged the Appellant to the EFCC where he (Appellant) was made to make payments of some monies in favour of the Respondents N1,2000,000.00 (sic) and N2,000,000.00, respectively; that this fact was not disclosed by the plaintiffs (Respondents) to the trial Court; that despite the above fact the trial Court upheld all thereliefs/claims of the Respondents and awarded cost of N20,000.00 against the Appellant.
Of course, upon hearing the suit on the undefended list, the trial Court said:
” … I hereby hold that the defendant has no defence to this action. The action of the plaintiff therefore succeed (sic). And the defendant is hereby ordered to pay to the plaintiff as per the writ …
(1) The sum of N9,514,000.00
(2) Court interest at the rate of 10% till the whole judgment for (sic) sums is liquidated
(3) Cost of filing and prosecuting this suit … N20,000.00″ (Pages 53 – 54 of the Records)
Appellant filed his Notice of Appeal dated 20/7/12, as per pages 126 – 130 of the Records, disclosing 6 grounds of appeal, as follows:
“GROUNDS OF APPEAL
1. The learned trial Judge erred in law in assuming jurisdiction in the trial of this matter when the court lacked the jurisdiction, competence and vires to adjudicate on the matter.
PARTICULARS
i. It is the claim of a Plaintiff that donates jurisdiction to the Court.
ii. Where a suit was not commenced in accordance with the applicable law or conditions precedent are not followed, the Court will lack the vires to adjudicate
iii. The case was not initiated by due process of law and there was non-fulfillment of condition precedent.
2. The learned trial Judge lacked jurisdiction to have entertained the case as filed and served in clear contravention of the provision of Order 23 Rule 2 of the Kano State High Court (Civil Procedure) Rules,1988.
PARTICULARS
i. The originating process filed by the Plaintiff/Respondent was not accompanied with a copy of Order 23 Rule 2 of the Kano State High Court (Civil Procedure) Rules, 1988.
ii. By the provision of Order 23 Rule 2, an originating process under Undefended List shall be accompanied with a copy of Order 23 Rule 1 – 4 of the Kano State High Court (Civil Procedure) Rules, 1988.
3. The learned trial Judge erred in law in affirming the judgment delivered on 23rd April, 2012 on 17th July, 2012 in the face of non-compliance with the statute.
PARTICULARS
i. The Defendant/Appellant by a Motion dated 24th April, 2012 urged the Court to set aside its judgment of 23rd April, 2012 for non-compliance with Order 23 Rule of the Kano State High Court (Civil Procedure) Rules, 1988.
ii. The Plaintiffs/Respondents did not deny the averment in the Counter-Affidavit dated 26th April, 2012 which is deemed admitted.
iii. The Honourable trial Court of Justice in its Ruling on 17th July, 2012 upheld the fact that the assertion was never denied by the Respondents.
iv. One of the prerequisites of a Court in the exercise of its jurisdiction is that the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
4. The learned trial judge erred in law when he held that the Appellant has failed to establish that he is an illiterate because his witnesses are literate persons being civil servant and public servant respectively inspite of the processes filed.
PARTICULARS
i. The Appellant in affidavit evidence filed on 2nd April, 2012 and 24th April, 2012 respectively stated crystal clear that he has little knowledge of Western education and cannot read nor write properly any document written in English with the assistance of an interpreter.
ii. The Appellant was made to sign documents prepared by learned Counsel for the Respondents without proper explanation and clarity in contravention of Illiterates Protection Law.
5. The learned trial judge erred in law in affirming the judgment delivered on 23rd April, 2012 on 17th July, 2012 which was tainted with fraud in the face of overwhelming documentary evidence.
PARTICULARS
i. The Defendant/Appellant paid the sum of N2,000,000.00 and N1,500,000.00 respectively to the Respondents during the pendency of the suit and this fact was never disclosed by the Plaintiff/Respondents to the Court who proceeded to obtain judgment in the sum of N9,514,000.00.
ii. The Defendant/Appellant by a motion dated 24th April, 2012 urged the trial Court to set aside its judgment which was obtained by mis-representation and suppression of vital facts by the Respondents for not disclosing having been paid the sum of N3,500,000.00 by the Appellant vide Bank Drafts cited 16th March, 2012 and 21st March, 2012 respectively.
iii. The Plaintiffs/Respondents in the Counter-Affidavit dated 26th April, 2012 did not deny the averment which is deemed admitted.
6. The learned trial judge erred in law in awarding the monetary sum of N9,514,000.00 and cost of N20,000.00 respectively against the Appellant when there was no specific and strict proof of same by the Respondents herein, and this led to a grave miscarriage of justice against the Appellant.
PARTICULARS
i. There was no specific and strict proof of the sum of N9,514,000.00 awarded against the Appellant.
ii. The award of N20,000.00 as cost by the trial Court is gratuitous and unsupportable.”
The Appellant’s Brief of arguments was filed on 8/11/12, wherein three (3) issues were distilled for determination, as follows:
“(1) whether the trial Court validly assumed jurisdiction to entertain the suit (Grounds 1, 2 and 4)
(2) whether the trial Court was right in affirming its decision earlier delivered on 23/4/2012 on 17th July, 2012 Grounds 3 and 5
(3) whether the trial Court can grant monetary award/reliefs against a Defendant when the plaintiff has not made out his case to be entitled to same (Ground 6).”
The Respondents filed their Brief on 3/12/12 and adopted the issues canvassed by the Appellant. Appellant, however, filed a Reply brief on 24/5/13.
When the Appeal was heard on 4/11/13, the parties, through their Counsel, adopted their briefs and urged us, accordingly.
Arguing the appeal, learned Counsel for the Appellant, OMEREONYE MORGANS C. ESQ. (who settled the brief) submitted on issue one, that the trial judge was wrong to assume jurisdiction, as there was none.
He relied on the case of OHAKIM VS. AGBASO (2010) 7 SCNJ 137 at 199, on the general guide which a Court should use to determine whether it has jurisdiction, namely:
“(a) the statute establishing the Court/tribunal;
(b) the subject matter of litigation;
(c) the litigating parties;
(d) the procedure by which the case is initiated;
(e) proper service of the process;
(f) territory where the cause of action arose or as the case may be, where the Defendant reside;
(g) composition of the Court/tribunal.
Counsel added that where the Court is not satisfied with any of the above determinants, it lacks jurisdiction and the trial may lead to a nullity.
He relied on Order 23 Rule 2 of the Kano State High Court (Civil Procedure) Rules, 1988, to say that nothing was mentioned in the affidavit of the Respondent as to the annexure of the said Order 23 Rule 2 to the writ and affidavit of the Respondent, shown on pages 1 – 12 of the Records of Appeal; that that was a clear attempt to obviate the law/rules.
He relied on the case of C.R.P.D.I.C. LTD VS. OBONGHE (2001) FWLR (Pt. 54) 353 at 370; JAGAL PHARM. LTD VS. HASSAN (2008) 14 WRN 160 at 182.
Counsel submitted that adherence to the rules of Court is a sine qua non to a competent adjudication by parties, since rules of Court have been held to be sacrosanct. He relied on the case of FBN PLC VS. TSA IND. LTD. (2010) 38 WRN 1 at 51 – 52; NWORAH VS. AKPATA (2010) 3 SCNJ 1 at 21.
Counsel then submitted that the learned trial Court was wrong when it held that the failure to annex the Order 23 Rule 1 – 4 could not be regarded as non-compliance. He relied on the case of CALABAR C.C.T, & C. SEC LTD. VS. EKPO (2008) 25 WRN 1 at 36, where TOBI JSC, said:
“A Court of law cannot ignore provisions of a statute which are mandatory or obligatory and tow the line of justice in the event that the statute has not done justice. Court of law can only do so in the absence of a mandatory or obligatory provision of a statute. In other words, where the provisions of a statute are mandatory or obligatory, Courts of law cannot legitimately brush the provisions aside just because it wants to do justice in the matter. That will be adulterating the provisions of the statute.”
He urged us to resolve the issue in Appellants favour.
On issue 2, whether the Court was right in affirming its earlier decision of 23/4/12 on 17/7/12, Counsel submitted that the trial Court erred in law by affirming its decision of 23/4/12, in the face of over whelming evidence, and exhibits ‘A1’ and ‘A2’.
Counsel reproduced the Ruling of the trial Court on pages 59 and 60 of the Records on the allegation that, with the existence of the drafts (Exhibits A1 and A2) made to EFCC, the learned trial Court should not have affirmed the decision of 23/4/12, and submitted that the trial ought not to have allowed himself to speculate, in the face of overwhelming facts, upon holding that the judgment Creditor/Respondent did not deny the payment. He said that that was an admission.
He relied on the case of OJEAHERE VS. ALAKIJA (2011) 34 WRN 46 at 74, where this Court held:
“It is a clear principle deeply enshrined in our jurisprudence that admissions made do not require to be proved for the simple reason, among others that “out of the abundance of the heart, the mouth speaketh.”
He added that the law is settled “that no better proof is required than that in which the adversary wholly and voluntarily own (sic) up,” submitting that the trial Court’s position that the Defendant/judgment Debtor was represented by a Counsel is not the position of the law; and that by saying that the only advantage to the judgment Debtor is that at the time of the execution, the total sum of Exhibits ‘A1’ and ‘A2’ would be deducted from the judgment sum, was an admission or pointer that the Court had taken judicial notice of the payments, but still refused to do the needful. He relied on the case of EHIGBE VS. OMOKHAFE (2010) 32 WRN 107 at 124.
Counsel further said that the trial Court was aiding the judgment Creditor/Respondent in the circumstances, and that was prejudicial to the judgment Debtor/Appellant. He relied on the case of AKINWALE VS. AKINWALE (2010) 31 WRN 129 at 144. He added that the trial Court ought to have made inferences on the documents (Exhibits A1 and A2) that the drafts submitted to the EFCC and the total amount had matured at the time the notice of intention to defend was filed; that the drafts being documentary evidence spoke for themselves and that the Respondent never denied receiving the amount. He relied on the case of OLALOMI INDUSTRIES LTD VS. NIGERIA INDUSTRIAL DEV. BANK (2009) 39 WRN 1 at 37. He urged us to resolve the issues in Appellant’s favour.
On issue 3, whether the Court can grant relief when the claimant has not made out his case to be entitled to the same, Counsel submitted that the Court erred by believing every piece of evidence presented by the plaintiffs on the basis that the defendant had no defence to the action; that the trial Court based its award on evidence which fell short of what the law required in proof of such case.
On the face of it, issue 3 suggests that it has been established that the Court granted the relief when the Respondent never made out his case by presenting evidence to warrant the grant.
I am afraid, Appellant’s arguments above, on the issue 3, do not tally with the issue 3. Whereas, the issue queries whether a trial Court can grant monetary award/relief against a defendant, when the plaintiff has not made out his case to be entitled to same, the arguments rather quarrels with the trial Court for believing every piece of evidence presented by the plaintiffs, on the basis that the defendant had no defence to the action! The argument therefore tends to erode the foundation of the issue, which suggests that there was no evidence to support the claim or that the plaintiff was not able to make out his case. If there was evidence by the plaintiffs, which the Court believed, as the Appellant tends to admit, then the Court had a duty to grant the relief and make the award. If Appellant now argues that there was no sound basis for that believe of the evidence of the plaintiffs, to warrant the award or that the evidence adduced fell far short of what the law requires to prove the case, that issue was not formulated for determination and cannot be considered in this appeal!
The law is trite, that in arguing appeals, the argument is founded on the issue for determination, which must be derived from the ground(s) of appeal and which, in turn, must be rooted in the judgment appealed against, that is, on a live issue (not academic) in the said judgment. See the case of OSADARE VS. LIQUIDATOR NIGERIA PAPER MILLS LTD (2012) ALL FWLR (Pt. 652) 1784; AKINDIPE VS. STATE (2012) ALL FWLR (Pt. 638) 805; C.N.E. INVESTMENT NIG. LTD VS. ASCO INV. LTD. (2012) ALL FWLR (Pt. 611) 1588; ALI VS. STATE (2012) ALL FWLR (Pt. 610) 1313; UNILORIN VS. OLAWEPO (2012) 52 WRN 42.
Of course, any argument of Counsel in an appeal, not founded on the issue for determination, is a misfire and amounts to nothing. It is just akin to an address of Counsel not founded on evidence, which is worthless, no matter how eloquent and articulate. It has to be struck out. OSADARE VS. LIQUIDATOR NIGERIA PAPER MILLS LTD (supra); NIGERIA ARAB BANK LTD VS. FELLY KEME NIGERIA LTD (1995) 4 NWLR (Pt. 387) 100 at 111.
I therefore strike out the issue 3 and the arguments there under, as well as the grounds of appeal thereof, for being in conflict, and incompetent.
The Respondents’ Counsel, B.Y. GAMBO ESQ., on issue 1, submitted that the trial Court had properly assumed jurisdiction to entertain the suit. He relied on the case of A.G. LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (Pt. 111) 552; that looking at the plaintiff’s claim before the trial Court and the parties, it was obvious the trial Court had jurisdiction to entertain the action. He reproduced the provisions of Order 23 of the Kano State High Court (Civil Procedure) Rules, 1988, and asserted that the trial Court was absolutely right to have assumed jurisdiction over the suit. Counsel added that the requirement that the provisions of Order 23 Rules 1 – 4 be served on the Respondent (together with the writ of summons and the Order of Court, placing the suit on the undefended list) is the duty of the Registrar of the Court, not that of the Plaintiff. He relied on Order 23 Rule 2. He submitted that the Respondent had complied with the provisions of the law. He relied on the case of MAGAJI VS. MAFARI (2000) 5 SC 46; UMANA VS. ATTAH (2006) 17 NWLR (Pt.1009) 503; SKEN CONSULT VS. UKEY (1981) 1 SC 6; GALADIMA VS. TAMBAI (2000) 6 SC (Pt.1) 196.
On issue 2, whether the trial Court was right in affirming its earlier decision delivered on 23/4/12, Counsel answered in the affirmative. He submitted that it is trite that judgment obtained under the undefended list procedure is judgment on the merit, which cannot be set aside by the same Court, unless on appeal, except it was obtained by fraud, or it was a nullity; he argued that Appellant did not show that his application fell within the exception, to warrant the call to set it aside. He relied on the case of OSHIOMOLE VS. FGN (2005) NWLR (Pt. 907) 414.
“There is always a presumption of correctness of a Court’s judgment, consequently, until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed generally!
See also S.P.D.C. (NIG.) LTD. VS. X.M. FED LTD. (2006) 16 NWLR (Pt. 1002) 189; REMAWA VS. NACB LTD (2007) 2 NWLR (Pt. 1017) 155; ONWOKA VS. MADUKA (2002) 18 NWLR (Pt. 799) 586, where the Supreme Court said:
“Under the general law, Court lacks the jurisdiction to set aside its decision except … when the decision is a nullity, by reason of breach of procedure or has occasioned a miscarriage of justice or as provided by the rules such as when the Court is given the power to discharge an order it has made …”
He urged us to resolve the issues against the Appellant and dismiss the Appeal.
RESOLUTION OF THE ISSUES.
I have already struck out the issue 3 for not being supported by any credible argument.
The issue 1 is on jurisdiction to entertain the suit and issue 2 queries whether the Lower Court was right in refusing to set aside the earlier decision entering judgment for the Respondents. I shall take the two issues together.
Appellant’s main reason for challenging the jurisdiction of the trial Court to enter judgment for the Respondents on the claim of N9,514,000.00, which was heard on undefended list procedure, is that “nothing was mentioned in the affidavit (of the Respondents) as to the annexure of the above rule,” that is, provisions of Order 23 Rules 1 – 4 of Kano State High Court (Civil Procedure) Rules, 1988, presumed to have been served on the Appellant, upon the case being placed on the undefended list. Appellant therefore argued that that was a non-compliance with Order 23 Rule 2 of the Rules of the High Court, and for that, the trial Court had no jurisdiction to entertain the suit and give judgment to the Respondents.
This argument and the position of the Appellant appear very strange to me, considering the fact that Appellant had filed a notice of intention to defend the suit, and an affidavit therefore, or being served with the processes, after the case had been placed on the undefended list; and in the Notice to defend the suit and the affidavit, the Appellant never raised any issue of non-compliance with any provision of law and never challenged the jurisdiction of the Court to entertain the claim! See pages 117 and 119 of the Records of Appeal.
The Appellant in fact, admitted the claim of the Respondents, when he averred as follows in his affidavit in supporting of the Notice to defend:
“(a) I had approached the 1st Plaintiff so as to seek his consent to use the 1st Plaintiff’s online BSP Link for the sale, issue Egypt Airlines Tickets to my customers for which I issued a cheque for the value.
(b) At all material time when I issued the check I though (sic) the account was well funded until the plaintiff drew my attention to this fact by the Demand letter dated 20th February, 2012 written on behalf of the 2nd Plaintiff by MESSRS M.A. LAWAN & CO.
(c) Upon being informed of this unfortunate development, I made enquires and realized that the account was truly not well funded
(d) I explained this issue to the plaintiffs and informed them that I will make payment in due course
(e) ————–
(f) The plaintiff was not satisfied with my pace of payment and he wrote to the Economic and Financial Crime Commission. I was invited and I informed them that I am a honest business man and that payment for this debt is being effected …”
The allegation by the Appellant, on appeal, that the Order 23 Rule 1 – 4 was not complied with at the time he was served with the process of Court was therefore an afterthought and made in a dishonest attempt to look for something to hold onto as excuses to evade responsibility, after having admitted the debt.
Thankfully, Appellant knew that the suit was one brought under the Undefended List Procedure, and So even if the Registrar of the Lower Court failed to serve him with the provisions of Order 23 Rules 1 – 4 of the High Court (Civil Procedure) Rules, he knew what the claim was about and took the appropriate steps towards it, by filing a Notice of intention to defend and an affidavit to support the intention! He was therefore not misled, or under any disadvantage or prejudice, even if he was not given the provisions of that law.
I believe, the Undefended List Procedure was developed because of people like the Appellant, who would want to invent every legal trick in the world to frustrate a simple case of debt repayment and run away from civil and contractual obligations, and dishonestly use the proceeds of sales transaction, without paying for same. The Undefended List Procedure came into force to facilitate speedy determination of simple debt recovery and liquidated money demands, to check the antics of mischievous debtors. See the case of ILORIN WEST LOCAL GOVT. VS ALASINRIN (2012) 23 WRN 114 at 135 – 136.
Appellant had taken out a motion seeking to set aside the judgment of 23/4/12, the judgment debt of N9,514,000.00 and cost of N20,000.00. The main grounds for the application was absence of jurisdiction and that it would be in the interest of justice to set the judgment aside.
In the Ruling of the Lower Court on 17/7/12, the Lower Court said that , throughout the proceedings, which led to the judgment delivered on 23/4/2012, the judgment Debtor/Applicant was ably represented by Counsel; that Exhibits ‘A1′ and A2′ being drafts produced at the time of application to set aside, and dated 21/3/12 and 26/3/12, were made 12 and 7 days, respectively, before Appellant filed the notice of intention to defend the suit and affidavit therefore, which he did on 2/4/12; that he (Appellant) did not mention the drafts in the affidavit of 2/4/12 and never said he had settled part of the debt, as alleged in the Exhibits A1 and A2! (See pages 59 – 60 of the Records).
All that Appellant said in the affidavit of intention to defend, about the involvement of EFCC in the debt problem was that:
“(f) The plaintiff was not satisfied with my pace of payment and he wrote to the Economic and Financial Crimes Commission. I was invited there and I informed them that I am a honest business man and that payment for this debt is being effected”
Of course, it stands to reason that if Appellant had made the payments in the drafts (Exhibits A1 and A2) made more than a week before he filed the Affidavit of 2/4/12, Appellant would have been the 1st to mention it in the affidavit of intention to defend the suit, at least, to show the Court that part of the debt had been settled! Having failed to do so, Appellant cannot blame the trial Court for his fault and cannot use that as the basis for the application to set aside a judgment duly entered for Respondent, on the merits, since the trial Court has become functus officio in the case. I have already held that the Lower Court had jurisdiction to hear the case, as it did.
Appellant should even be thankful to the trial Court (instead of vilifying it) for having conceded the right to set-off or deduct the sum allegedly outstanding on Exhibits A1 and A2 (N2,000,000.00 and N1,500,000.00), at the time of the execution of the judgment, if the payment of the said sums on the Exhibits are established at the time of the execution. The Lower Court had held:
“That being the case’ the only advantage to the judgment Debtor/Applicant is that at the time of execution, the total sum of the exhibits ‘A1’ and ‘A2’ would be deducted from the judgment sum”‘ (page 60 of the Record).
Appellant did not even ask for such relief in his application seeking for the setting aside of the judgment, and when the Court granted Same, presumably, as a consequential order, an Appellant who sincerely wanted to settle the debt would have thanked the Lower Court and proceeded to satisfy the judgment debt. Not this Appellant, who claimed in his affidavit to be “a honest business man” but applies every trick to evade payment of his debt!
I hold that the trial Court was right to refuse the application to set aside the judgment of 23/4/12, as it had become functus officio in that case. See the case of REMAWA VS NACB LTD (2007) 2 NWLR (PT. 1017) 155, where this Court said:
“Generally speaking, when trial Court has given judgment in a case on the merit, that Court is functus officio in relation to the judgment once pronounced. It cannot ordinary reopen the case for a fresh hearing. A party dissatisfied with the judgment can only appeal against it.”
See also ABDULFATAI. KAYODE (2012) LPELR 14324 (CA) at 47; and DINGIYADI VS. INEC (2010) 18 NWLR (Pt.1224) 1 at 137, where the Supreme Court held:
“A Court is said to be functus officio in respect of a matter if the Court has fulfilled or accomplished its function in respect of the potency to review, reopen or revisit the matter. Thus, once a Court delivers its judgment on a matter, it cannot revisit or review or set aside the judgment, except under certain condition, More importantly, a Court lacks jurisdiction to determine an issue when it is functus in respect of the issue or when the proceeding relating to the issue is an abuse of Court process.”
See also KAYODE VS. ABDULFATAI (2013) 33 WRN 145 at 178.
I therefore resolve the two issues against the Appellant and dismiss the appeal as it is completely devoid of merit.
Appellant shall pay fifty thousand Naira (N50,000.00) cost to the Respondents.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had studied in advance the draft copy of this judgment just delivered by my learned brother, Mbaba, J.C.A., and I cannot but agree with him that this appeal is most unfounded and lacking in merit. The Appellant, in the affidavit filed along with his Notice of Intention to Defend the suit personally deposed to by him on 2/4/2012 merely averred at paragraph 2(e) that he subsequently made payments of substantial sum to the Plaintiffs without particularising details of the payments i.e., the dates and the exact sum paid against each date.
He made a general assertion without more, that is to say, not substantiating the alleged payments he made with any documentary evidence in existence. As he failed to cognise and take proactive measures in furnishing the Court with all his documentary evidence at the time of filing his affidavit, he should not cast any blame on the Court when it exercised its discretion as provided by the Rules. The only documents the Court was to examine on the date fixed for hearing were the affidavit evidence of the parties to ascertain whether theDefendant has disclosed any defence thereto, but not to speculate if indeed the Defendant had liquidated part of his indebtedness, and how much it were. There was no means the trial Court ought to have perceived the details or the truthfulness of the Appellant’s assertion in the light of such vague defence. The Appellant had the onus of proving to the trial Court how he had repaid part of the debt at the time of hearing but he remained placid and allowed the Court to deliver its judgment before crying wolf.
As for the issue raised on the failure to annex a copy of Order 23 Rules 1 – 4 to the process served on the Defendant, it ought to be recognized that the said Order strategically placed the duty so to do on the Registrar of the Kano State High Court and, not on the party.
It is trite that Courts do not punish a diligent party or litigant due to the administrative lapses of Court Registrars or staff. After all, at the end of the day, the litigant will still be represented by a Counsel in Court. The Rules of the High Court of any State and the Federal Courts having jurisdiction over the area in which Counsel practice their law, suppose to be the Counsel’s A-Z and, a must have by Counsel. Be that as it may, it is my view that the omission to attach a copy of the required Rule to the process is an irregularity that can be waived and does not void the suit. It would have attracted a different approach had the Appellant shown that serious miscarriage of justice was occasioned, but none was portrayed by the Appellant. Besides, there is clear evidence that despite that, the Appellant still filed his Notice of Intention to defend together with his affidavit disclosing his defence thereto. He fully participated through his Counsel in the proceeding. He cannot now blow hot about the omission, because in spite of the alleged omission he still participated at the trial. It is for this reason and the detailed reasons in the leading judgment of this Court that l, too, find this appeal unmeritorious and hereby dismiss the same.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Ita Mbaba, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal I agree with the reasoning and abide the conclusions reached therein. I only wish to add some few comments.
The Respondent commenced the action in the lower Court, as plaintiff, against the Appellant, as defendant. The action was placed under the Undefended List and the writ of summons along with the affidavit of facts in support was duly served on the Appellant. The Appellant responded by filing a Notice of Intention to defend supported by an affidavit of facts. The lower Court took arguments on the matter and it found that the Appellant did not disclose a defence on the merits and it entered judgment in favour of the Respondent 23rd of April, 2012. On the 24th of April, 2012, the Appellant filed a motion on notice before the lower Court seeking to set aside the judgment entered by the court. The lower court took arguments on the application and dismissed same in a considered ruling delivered on the 17th of July, 2012. This appeal is against both the judgment and the ruling of the lower Court.
Counsel to the Appellant contended that the lower Court was wrong to have assumed jurisdiction to entertain the suit under the undefended List and he hinged his submission on the provision of Order 23 Rule 2 of the High Court of Kano State (Civil Procedure) Rules. Counsel stated that the Rules require the Registrar of Court to attach a copy of rules 1 to 4 of Order 23 to the writ of summons and affidavit of facts to be served on a defendant in an action under the Undefended List and that the processes served on the Appellant in the instant case did not have such a document attached. Counsel submitted therefrom that this robbed the lower Court of jurisdiction to entertain the matter. The Appellant never raised this issue before the lower Court either before filing his notice of intention to defend or at any thereafter during the hearing of the matter and he fully participated in the proceedings.
With respect to Counsel, his submission was an open display of ignorance of the concept of jurisdiction of a court to entertain a matter. It is a carry-over of the general confusion that has been introduced by some case law authorities into the understanding of the concept of jurisdiction of Courts. There is a whole world of difference between procedural irregularity and the substantive jurisdiction of a court to hear a matter and procedural irregularity does not qualify as an issue of jurisdiction that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity. An irregularity in the exercise of jurisdiction should, and must not, be confused with total lack of jurisdiction which takes cognizance of the general meaning of the word “jurisdiction” as the authority which a court has to decide matters that are litigated before it or take cognzance of matters presented in a formal way for its decision. Procedure for invoking the jurisdiction of court should not be confused with the authority of the court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the court or tribunal in going into matters before it are matters of procedure regulated by procedural rules.
It is matters of substantive jurisdiction that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural irregularity. Matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again – Kwaa Vs Kwakwa 3 WACA 176, Katsina Local Government Authority vs Makudawa (1971) 7 NSCC 119, Odu’a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1 and the unreported decision of this court in Appeal No CA/K/5/2006 – Muhammed vs Ajingi delivered on the 12th of February, 2013. This point was elaborately explained by Ayoola, JSC in Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1. His Lordship laid down the guidelines to be followed at pages 31 to 32 where he said thus:
“… This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my opinion, bearing the distinction in mind, appropriate guidelines could be fashioned out as follows: (i) where on the face of the proceedings a superior court is competent, incompetence should not be presumed; (ii) where on the face of the proceedings the court is incompetent, the court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties and if it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings; (iii) where the incompetence of the court is affected by evident procedural defect in the commencement of proceedings and such defect is not dependent on ascertainment of facts, the court should regard such incompetence as arising ex facie; (iv) when the competence of the court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts, the incompetence cannot be said to arise on the face of the proceedings and the issue of fact if properly raised by the party challenging the competence of court should be tried first before the court makes a pronouncement on its own competence, (v) where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for the party who alleges the court’s incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or affidavit in cases commenced by originating summons; (vi) a judgment given in proceedings which appear ex facie regular is valid.”
The issue canvassed by the Appellant in this appeal was a matter of procedural irregularity and having participated fully in the proceedings before the lower Court without raising the issue, he cannot be heard to raise it in his appeal and the judgment entered by the lower Court cannot be challenged before this Court on that basis alone.
On the ruling of the lower Court refusing the motion to set aside its judgment, it is settled law that once a Court delivers its decision in a matter it becomes fuctus officio and cannot revisit the decision. This Court speaking on the phrase “funtus officio” in its unreported judgment in Appeal No CA/K/63/2007 – Diamond Bank Plc Vs Mshelia delivered on the 13th of November 2013 stated:
“… the phrase “functus officio” means a task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. This means in practice that idea that the specific duties and functions that an officer was legally empowered and charged to perform have been wholly accomplished and, thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life becomes dead or moribund after the performance of the duty or function by the authority. When it is used in connection with a court, it means that once a court has decided a matter before it, that court has no further force or authority over the matter and it lacks competence or jurisdiction to review or revisit its decision and/or to re-open the said matter for further deliberations. It cannot assume appellate status over its decision, except under exceptional circumstances and where there is a statutory provision in that regard – Buhari Vs Independent National Electoral Commission (2008) 19 NWLR (Pt 1220) 246, Federal Polytechnic, Idah Vs Onoja (2012) 12 NWLR (Pt 1313) 72, Nwoko Vs Azekwo (2012) 12 NWLR (Pt.1313) 151.”
The law is that a court of law can set aside its own judgment or order only in two instances; namely: (i) where it is so empowered by statute to do so; and (ii) under its inherent jurisdiction in specified and certain situations – Yakubu Vs Governor, Kogi State (1997) 7 NWLR (Pt 511) 66, Fada Vs Naomi (2002) 4 NWLR (Pt 757) 318, Ene Vs Asikpo (2010) 10 NWLR (Pt 1203) 477. A court can set aside the decision reached in the judgment or order under its inherent jurisdiction where it is shown that it was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud – Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659, First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt.1216) 247, Dingyadi vs INEC (No 1) (2010) 18 NWLR (Pt.1224) 1, Ede Vs Mba (2011) 18 NWLR (Pt 1278) 236, Adeyemi-Bero Vs Lagos State Property Development Corporation (2013) 8 NWLR (Pt 13560) 238. Reading through the affidavit in support of the motion to set aside the judgment, the Appellant did not canvass any of these grounds as the reason for the application. The application was thus bound to fail from the very beginning.
I agree that this appeal is frivolous and totally misconceived. I too dismiss the appeal and affirm the decisions of the lower Court appealed against. I abide the order on costs in the lead judgment.
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Appearances
Omereonye Morgans C. Esq.,For Appellant
AND
B.Y. Gambo Esq.,For Respondent
