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BAMGBOYE & ANOR v. UBA & ORS (2022)

BAMGBOYE & ANOR v. UBA & ORS

(2022)LCN/16047(CA)

In the Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, June 10, 2022

CA/IB/405/2017

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

YargataByenchitNimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1. MISS R. A. BAMGBOYE 2. KAMIL OROTOYE APPELANT(S)

And

1. UNITED BANK FOR AFRICA LTD 2. CHIEF O.A. AYANWALE 3. CHIEF R.A. ADEBAYO RESPONDENT(S)

 

RATIO

ON WHEN THE ISSUE OF JURISDICTION OF COURT SHOULD BE ADDRESSED        

The question of jurisdiction is fundamental and once raised, it must be resolved before the Court can take any step in the matter, see BRITTANIA-U (NIG) LTD V. SEPLAT PETROLUEM DEVELOPMENT CO LTD & ORS (2016) LPELR-40007(SC) wherein the apex Court held thusly:
“It is a matter now trite that the jurisdiction of any Court is sacrosanct and fundamental to the adjudicatory powers of a Court and being a threshold issue can be raised at any point or stage of the proceedings even on appeal for the very first time. Therefore once brought up no other thing should be allowed within the focus of the Court than the resolution of that jurisdictional question. This critical position of the matter of jurisdiction being so since a Court merely wastes its precious time when it has embarked upon a trial when it has no jurisdiction since everything therein done including the decision and order come to naught, indeed a futile exercise. That is why it is a bounden duty of the Court to have that question settled first and foremost before it can go further into the matter before it. Stated differently, the Court must ask itself if it has the power to handle the case and so when it is brought to a Court’s attention that it lacks jurisdiction, it has to pause a while, answer the question first and if positive go forth but if in the negative the Court says so before anything else. I place reliance on Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Osakue v. Federal College of Education (Technical) Asaba (2010) 10 NWLR (Pt. 1201) 1; Cadbury Nig. Plc v. F.B.I.R. (2010) 2 NWLR (Pt. 1179). A Court is naked and exposed without jurisdiction. It is therefore the general rule to determine jurisdiction first whilst it is an exceptional rule to take steps in defending or protecting the authority of the Court first before jurisdiction.” Per PETER-ODILI, J.S.C – PER YARGATA BYENCHIT NIMPAR, J.C.A. 

PRINCIPLES GOVERNING ISSUES FOR DETERMINATION ON APPEAL

I shall start with issue two which is a challenge to the competence of the appeal. Every issue for determination must be rooted in a Ground of Appeal, see ADELAJA V. FANOIKI & ANOR (1990) LPELR-110(SC) wherein the apex Court held thusly:
“It is now fairly well settled that the issues for determination in the appeal formulated must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal filed. Since they arise from the grounds of appeal, the issues ought to take account of the grounds of appeal and cannot raise issues outside their contemplation. Since the issues for determination are highlights of the grounds of appeal, they usually are framed in terms of related grounds of appeal supporting the same issue. Hence the issues for determination are usually less but never more than the number of the grounds of appeal filed.” Per KARIBI-WHYTE, J.S.C
​When a party formulates an issue which is not premised on a ground of appeal, it must be discountenanced. Issue three is in that category and must be struck out for lacking foundational basis. It is hereby struck out – PER YARGATA BYENCHIT NIMPAR, J.C.A. 

THE POSITION OF LAW AS TO WHO MUST SIGN A LEGAL PROCESS

It is the law that only the party himself or the legal practitioner must sign processes and in a particular manner, as stated in the case of SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (Pt. 1252) 317, the Supreme Court per Rhodes-Vivour, JSC stated thus:-
“All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represents. Fourthly, name and address of legal firm.
Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e, the Legal Practitioners Act).” In the lead judgment, Onnoghen JSC (as he then was) at pages 331-332 (paras H-A) held that:
“… A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.” – PER YARGATA BYENCHIT NIMPAR, J.C.A. 

THE VALIDITY OF ORIGINATING PROCESS

Failure to initiate a writ or initiating process according to law is fatal and it means the suit is incurable and irredeemably defective, see KIDA V. OGUNMOLA (2006) LPELR-1690(SC) wherein the apex Court held thusly:
“…the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.” Per MUSDAPHER, J.S.C
​Also see the case of NZOM & ANOR V. JINADU (1987) LPELR-2143(SC) wherein the apex Court held thus:
“Once a writ is void, no amendment of the particulars, title etc. can save it. It is incurably bad and all the amendments effected are equally nullities. See Macfoy v. UAC Ltd. (1962) AC 152; Sken Consult (Nigeria) Ltd. v. Godwin Ukey (1981)1 SC 6 at 9; Opebiyi v. Oshoboja (1976) 9-10 SC 195 at 201.” Per OBASEKI, J.S.C
Failure to initiate according to law divests the Court of jurisdiction, see DR. BRAITHWAITE VS SKYE BANK PLC (2012) 12 SC (PT. 1) Page 1 and AKINGBOLA & ANOR V. IGBE & ORS (2018) LPELR-44155(CA) wherein the Court held thusly:
“It is also settled by case law that a writ of summons is the originating process by means of which actions are commenced. The competence of such process is a pre-requisite for a valid and subsisting claim. Therefore, where a process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon. See. Therein it was also held that failure to commence a suit with a valid writ and/or statement of claim goes to the root of the action, since the conditions precedent to the exercise of the Court’s jurisdiction would not have been met to duly place the suit before that Court.” Per OSEJI, J.C.A – PER YARGATA BYENCHIT NIMPAR, J.C.A. 

THE PURPOSE OF A FURTHER AND BETTER AFFIDAVIT

The purpose of a further and better affidavit was restated in the case of OLA V. UNILORIN & ORS (2014) LPELR-22781(CA) thusly:
“A further affidavit is needful when there is a counter-affidavit that has denied and contradicted the weighty and substantial facts in an affidavit evidence and further sets out new facts which are credible and which if believed by the Court will lead to a finding in favour of the Respondent. Per ONYEMENAM, J.C.A

ON WHEN THERE ARE CONFLICTS IN AFFIDAVITS

The law is also trite that when there are conflicts in affidavits, the best thing to do is to call oral evidence, see EZECHUKWU & ANOR V. I.O.C ONWUKA (2016) LPELR-26055(SC) wherein the apex Court held thus:
“Now, counsel on both sides are one and correctly too that where there is irreconcilable conflict in the deposition of contesting parties before a Court, the Court must resolve the conflict by calling oral evidence either from the deponents or other witnesses. The Court, in the face of such a persisting conflict, is not allowed to prefer one deposition to the other. Learned respondent counsel cannot be faulted in his further submission that the need to call oral evidence arises only where the conflict in the affidavits are significant and material. The need to call oral evidence, on the authorities, is obviated where the conflict is narrow in which case the Court is in a position to overlook same. In Eboh & Anor v. Oki & Ors (1974) NSCC (Vol.9) 26, this Court restated the principle thus:- “while a Court, in a given case, may act on affidavit evidence, it would be unsafe to do so where the evidence is strongly contested and where issues of credibility can only be resolved upon the Court’s view of witnesses.” See also Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 and Atanda v. Olarewaju (1988) 4 NWLR (Pt.98) 394.” Per MUHAMMAD, J.S.C – PER YARGATA BYENCHIT NIMPAR, J.C.A. 

The Appellants should have made an application for oral evidence to resolve the conflicts and establish the facts, see FALOBI V. FALOBI (1976) LPELR-1236(SC) wherein the apex Court held thusly:
“We have pointed out on numerous occasions that when a Court is faced with affidavits which are irreconcilably in conflict, the Judge hearing the case, in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. It does not matter whether none of the parties asked to be allowed to call any witness. Such omission by the parties should not be taken to amount to consent that affidavit evidence should be used in such circumstances. (See Akinsete v. Akindutire (1966) 1 All NLR 147 at p. 148; Eboh & Ors. v. Oki & Ors. (1974) 1 S.C.179 at pp. 189-190; Olu-Ibukun & Anor. v. Olu-Ibukun (1974) 2 S.C.41 at p. 48; and Uku & Ors. v. Okumagba & 3 Ors. (1974) 3 S.C. 35 at pp. 56, 64-65).” Per FATAYI-WILLIAMS, J.S.C – PER YARGATA BYENCHIT NIMPAR, J.C.A. 

CIRCUMSTANCES UNDER WHICH THE COURT HAS POWER TO SET ASIDE ITS DECISION

See SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC) where the apex Court held thusly:
“It is true and well settled that a Court has an inherent jurisdiction to set aside its own judgment where the conditions have been met by the applicant. These are where the judgment sought to be set aside was obtained on failure to comply with procedural rules. See Evans v. Bartlam (1937) AC. 473.”
Fundamentally, an application to set aside a judgment is not granted as a matter of course, there are conditions to granting such applications particularly by a Court of coordinate jurisdiction. See the case of COVALENT OIL & GAS SERVICES LTD & ANOR V. ECOBANK (NIG) PLC & ANOR (2021) LPELR-53391(CA) where the Court held thus:
“…Having said that, there are however situations where the Court is permitted to exercise jurisdiction, to set aside its own judgment or the judgment of a Court of co-ordinate jurisdiction. This includes, where the judgment is entered in default of the defendant’s appearance or in default of pleadings; where the judgment was obtained by fraud; where the judgment breached the fundamental right of a party; and where the judgment will workinjustice on one of the parties; See U.B.A. Plc v. Ajileye (1999) 13 NWLR (pt. 633) 166; Okafor v. A.G. Anambra State (1991) 6 NWLR (pt. 200) 659 and LSDPC v. Adeyemi-Bero (2005) All FWLR (pt. 252) 486 at 503. A Court has inherent jurisdiction to set aside its own null and void decision or order and also the null and void judgment of a Court of co-ordinate jurisdiction. See SKENCONSULT V. UKEY (1981) SC 6. A fortiori a person whose interest is affected by such decision can come to Court without much ado to have it set aside ex debito justitiae by the same Court. See EGBUZIEM v. NRC (1994) 3 NWLR (pt. 330) 23 at 33. Furthermore, in setting aside a void order or judgment it does not matter which Judge, be it the Judge that issued the alleged void order or another Judge of the Court of concurrent jurisdiction that sets aside the other. The order being null and void can be set aside by the Judge who made it or another Judge of the same Court through a judicial pronouncement without the necessity of an appeal. Furthermore, in setting aside a void order or judgment it does not matter which Judge, be it the Judge that issued the alleged void order or another Judge of the Court of concurrent jurisdiction that sets aside the other. The order being null and void can be set aside by the Judge who made it or another Judge of the same Court through a judicial pronouncement without the necessity of an appeal.” Per MUSTAPHA, J.C.A
The settled and accepted conditions under which a Court could set aside a judgment are:
i. Lack of jurisdiction;
ii. Fraud and misrepresentation;
iii. Default of appearance of certain rules of Court:
iv. Slip rule
These conditions and others were restated in the case of APC V. AGUMA & ORS (2020) LPELR-52309 (CA) as follows:
“This Court has the power to set aside its decision in the following circumstances: –
1. Where the judgment was obtained by fraud or deceit either in the Court or of one or more of the parties.
2. When the judgment is a nullity in which case a person affected by such order is entitled ex debito justitiae to have it set aside.
3. When it is obvious that the Court was misled into giving such judgment under a mistaken belief that the parties consented to it.
4. Where in a cross-appeal, the respondent’s cross-appeal was not considered in the judgment.
5. Where the judgment was given in the absence of jurisdiction; and
6. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See DIKE VS. STATE (2018) 13 NWLR (PT. 1635) 35 SC; ELIAS VS. ECOBANK NIG. PLC (2017) 2 NWLR (PT. 1549) 175 CA; TOMTEC (NIG) LTD VS. FHA (2009) 18 NWLR (PT. 1173) 358; JEV VS. IYORTYOM (2015) 15 NWLR (PT. 1483) 484.”
An Applicant has the responsibility of placing sufficient materials before the Court to warrant granting the application. Once an Applicant can show good and sufficient cause, the application will be granted in the interest of justice. See WILLIAMS VS. HOPERISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145; N. N. S. CO. LTD VS. ESTABLISHMENT SIWA OF VADUZ (1990) 7 NWLR (PT. 164) 526. – PER YARGATA BYENCHIT NIMPAR, J.C.A. 

ON THE MEANING OF FUNCTUS OFFICIO

Functus officio was defined in the case of ALOR & ANOR V. NGENE & ORS (2007) LPELR-431(SC) and BUHARI V. INEC & ORS (2008) LPELR-814 (SC) wherein the apex Court held thus:
“Functus officio ordinarily means a task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. See Black’s Law Dictionary, 6th edition, page 673. The latinism means in practice the idea that the specific duties and functions that an officer was legally empowered and charged to perform have now 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. In our context, a Judge who has decided a question brought before him is functus officio, and cannot review his decision. See also Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275; Onwuchekwa v. CCB (1999) 5 NWLR (Pt. 603) 409; Anyaegbunam v. Attorney-General of Anambra State (2001) 6 NWLR (Pt. 710) 532; INEC v. Nnaji (2004) 16 NWLR (Pt. 900) 473. ” Per TOBI, J.S.C
The High Court having delivered the judgment cannot revisit the said judgment with a view to making correction, setting it aside or any other thing outside the conditions named above for setting aside a judgment delivered. Issue one is hereby resolved against the Appellants. – PER YARGATA BYENCHIT NIMPAR, J.C.A. 

EFFECTS OF FAILURE TO PLACE SUFFICIENT MATERIALS BEFORE THE COURT

The law is settled that an applicant who fails to place sufficient materials before the Court to justify an exercise of its discretion in his favour does so at his own peril. See S & D CONSTRUCTION COMPANY LIMITED VS. AYOKU (2011) 13 NWLR (PT. 1265)487; IN RE:  YAR’ADUA (2011) 17 NWLR (PT. 1277) 567. 
In this appeal, the Appellants as Applicants had a duty to place sufficient materials before the lower Court to demonstrate that the judgment subject of complaint was delivered two years after the Judge had retired from service. My view is that even where the facts required to be placed before the Court are such of which the Court may take judicial notice, the Court still has a discretion to require that requisite facts be properly placed before it. See Section 122 (4) Evidence Act, 2011 which provides as follows:
“If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document, as it may consider necessary to enable it to do so.” -PER FOLASADE AYODEJI OJO, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Oyo State High Court sitting in Ibadan and delivered by HON. JUSTICE S. A. AKINTEYE on the 12th July, 2017 in Suit No.: I/1099/2001 wherein the lower Court dismissed the claim of the Appellants on the basis that the grounds relied upon are not well grounded in law. The Appellants dissatisfied with the decision, filed a Notice of Appeal on dated 14th July, 2017 setting out 4 grounds of Appeal.

​Facts leading to this appeal are straight forward and amenable to brief summary. The 2nd Appellant was a customer of the 1st Respondent and in the cause of Banking with the 1st Respondent, he obtained a credit facility of N50,000.00 from the 1st Respondent in 1987 secured by the document of title of the 1st Appellant’s property at No.2 Olanipekun Street Iwo Road, Ibadan. Thereafter, disagreement ensued between the 2nd Appellant and the 1st Respondent on the balance due on the loan account and the rate of interest applicable to the account. The 2nd Appellant instituted an action against the 1st Respondent but was later struck out due to lack of diligent prosecution. On the 6th November, 2001, the 2nd Respondent acting on the instruction of the 1st Respondent sold the property of the 1st Appellant to the 3rd Respondent by public auction.

​On the other hand, the Respondents claimed that in a bid to recover the debt owed the 1st Respondent, the 1st Respondent foreclosed and auctioned the Mortgaged property to foreclose and recover the loan because it became clear that the 2nd Appellant was incapable of paying back the loan, which has now occasioned the suit leaching to this appeal. The Appellants instituted this action against the Respondents. The matter proceeded to hearing 9 years later and after written addresses of Counsel were adopted and judgment was reserved.

​On the 5th August, 2014 which was the last day in the office of the trial Judge, Appellants alleged that he came into the Court with a camera and dismissed the case of the Appellants without reading any prepared judgment because the copy of the judgment was only released 2 years later. On receipt of the judgment, the Appellants filed an application dated 18th October, 2016 praying the Court to set aside the said judgment however, after due consideration the trial Court dismissed the application brought by the Appellants. The Appellants aggrieved with the said judgment brought the instant appeal.

Pursuant to the Rules of the Court, the parties filed and exchanged their briefs which were adopted at the hearing of the appeal. The Appellants’ amended brief settled by PRINCE ABIOYE OLOYEDE-ASANIKE, ESQ., is dated 9th November, 2021, filed on 11th November, 2021 but deemed on the 18th January, 2022. The Appellant distilled a sole issue for determination as follows:
Whether the learned trial Judge Hon. Justice S.A. Akinteye was right in dismissing the Appellants’ application for setting aside the judgment of His Lordship Hon. B.O. Adeniji (RTD) delivered after 2 years of his Lordship’s retirement

The Respondent’s Brief settled by MAYOWA A. ADEYEMO, ESQ., dated 11th January, 2022 filed on the 12th January, 2022 but deemed on the 18th January, 2022. The Respondents distilled 3 issues for determination as follows:
1. Whether the refusal to grant the application brought by the Appellants/Claimants seeking to set aside the judgment of HisLordship Honourable Justice B.O. Adeniji (RTD) was rightly held or not?
2. Whether the writ of summons and statement of claim filed by the Appellants was signed by a legal practitioner whose name is on the roll at the Supreme Court of Nigeria and eligible to practice law in Nigeria
3. Whether on the preponderance of evidence the auction carried out on the Mortgaged property could be a valid sale or disposition of the 1st Appellant’s property.

Thereafter, the Appellants filed an amended reply brief dated 17th January, 2022 but deemed on 18th January, 2022.

APPELLANTS’ SUBMISSION
SOLE ISSUE
In arguing this issue, the Appellant reproduced the holding of trial Judge while dismissing the Appellants’ application as contained in pages 340-348 of record and also reproduced the facts deposed to in the affidavit in support of motion on notice which is at pages 255-257 of the record and the facts deposed to in the Respondents’ counter-affidavit at pages 305, 340-348 of records to argue that the trial Judge was faced with the issue of conflict in the two affidavits filed by parties, the law is trite that where a Court is faced with irreconcilable facts in affidavits, the Court should resolve the conflict by calling oral evidence from the deponent and his witnesses, if any as held in EGHOLOGBIN V. OLUGHOR IN REOTUEDOH (1995) 4 NWLR (PT. 392) 655, OLU-IBUKUN V. OLU IBUKUN (1974) 2 SC 41, UKU & ORS V. OKUMAGBA & 3 ORS(1974) 3 SC 56 and JOSEPH Q. FALOBI V. ELIZABETH O. FALOBI (1976) 9 & 10 SC, therefore, the facts contained in the counter-affidavit cannot be resolve by a further affidavit, hence, the trial Court was wrong to hold that the Appellants ought to file a further affidavit to contravene the assertions in the counter affidavit.

It was the submission of the Appellants that the Respondents failed to controvert paragraph 2(i-ix) of the affidavit in support of the motion on notice, therefore it is trite that facts not controverted are deemed admitted as held in KOTOYE V. SARAKI (1993) 5 NWLR (PT. 296) 710, HONDA PLACE V. GLOBE MOTOR HOLDING NIG LTD (2005) 14 NWLR (PT. 943) 273 and LONG JOHN V. BLAKK (1998) 6 NWLR (PT. 553) 524. The Appellants reproduced second ground under which the trial Court dismissed the Appellants’ application and submits thatthe doubt contained therein cannot be resolved by a further affidavit but by the Court calling on the Registrar of the Court to give oral evidence because it was the Registrar of the Court that issued out the judgment. Furthermore, the Appellant reproduced third ground and argued that the facts are admitted by parties even the Respondents stated same in paragraph 3 of their counter affidavit, therefore the Court ought to take judicial notice of it because the law is trite that facts admitted by a party are deemed established without further proof as held in Section 122(2) of the Evidence Act, 2011, AROMOLARAN V. OLADELE (1990) 7 NWLR (PT. 162) 262 and KAMALU V. UMUNNA (1997) 5 NWLR (PT. 505) 321.

The Appellant urged the Court to allow the appeal, set aside the ruling of the trial Judge and also the judgment of the lower Court.

RESPONDENTS’ SUBMISSION
ISSUE ONE
The Respondents submits that the Appellants did not show the injustice or damages suffered by the refusal to grant the application of the Appellants as t he judgment sought to be set aside is valid and in accordance with Section 291(1) of the 1999 Constitution. Continuing, the Respondents argued that the delay in obtaining a certified true copy is a valid ground under which a motion for extension of time to file an appeal can be granted and the only injustice that could be said to be meted out on the Appellants was that the Appellants could not file a notice of appeal on time. Therefore, now that the judgment had been obtained, the proper thing to do is to file the necessary appeal processes.

It was the argument of the Respondents that it was stated clearly in the Respondents’ counter affidavit that the judgment was read in whole in the Court for about 20 minutes and this fact was not controverted by the Appellants which brings the need and purpose for a further affidavit and better because an unchallenged deposition of facts in an affidavit are deemed admitted as provided in Section 124(1) of the Evidence Act, 2011, GLOBE FISHING INDUSTRIES LTD V. COKER (1990) 7 NWLR (PT. 162) 265, BEDDING HOLDING LTD V. N.E.C. (1992) 8 NWLR (PT. 260) 428 and OKEREKE V. EJIOFOR (1996) 3 NWLR (PT. 434) 90. Furthermore, the Respondents contends that it is trite that a judgment can only be set aside by the same Court in the event of lack of jurisdiction, fraud or slip or pencil rule because the Court has become functus officio, however, none of these was raised or even proved by the Appellants before the trial Court. The Respondents relied on MICHAEL & ORS V. BANK OF THE NORTH (2015) LPELR-24690(SC) to support his submissions. The Respondent urged the Court to dismiss this appeal with substantial cost in favour of the Respondents.

ISSUE TWO
In arguing this issue, the Respondent submits that the writ of summons filed by the Appellants was issued by Bioye A. Oloyede but signed by Sherifat Adepoju above the signature on behalf of Bioye Oloyede & Co and the law is trite that proper signing of a writ or any originating process by a legal practitioner known to law is a condition precedent to assume jurisdiction by the Court, hence a writ not signed by a legal practitioner is defective, therefore the Appellants’ writ of summons is defective. The Respondents referred the Court to ONI V. CADBURY (NIG) PLC (2016) 9 NWLR (PT. 1516) 80, MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341, SUN PUBLISHING LTD V. LEADERS & CO LTD (2016) 7 NWLR (PT.1510)7-8, ILOKSON & CO (NIG) LTD V. UNION BANK(2021) LPELR-55626(SC), DPMS LTD & ANOR V. AKERELE (2018) LPELR-45532(CA) and EMEKA V. CHUBA-IKPEAZU & ORS (2017) LPELR-41920(SC).

Continuing, the Respondents argued that the writ of summons filed by the Appellants was signed by BioyeOloyede& Co being a name of law firm offends Section 2(1) and 24 of the Legal Practitioners Act, which provides that only person whose name appears in the roll of the Supreme Court can engage in any form of legal practice, therefore, a defective writ cannot confer jurisdiction on the Court as held in OKAFOR & ORS V. AUGUSTINE NWEKE & ORS (2007) 3 SC (PT. 11) 55 and MACFOY V. UAC(1962) AC 150. It was the argument of the Respondent that issue of defective writ of summons is a jurisdictional issue which can be raised at any time, even for the first time in the Court of appeal because jurisdiction is very fundamental and the absence of the jurisdiction in a Court goes to the root of the matter as held in COTECNA INTERNATIONAL LIMITED V. IMB LIMITED (2006) 9 NWLR 90 (PT. 985) 279, SLB CONSORTIUMLTD V. NNPC (2011) 9 NWLR (PT. 1252) 317 and OKAFOR V. NWEKE (2007) 10 NWLR, 521. Further on this issue, the Respondents submits that any document which ought to be signed and was not signed renders its authorship and authority doubtful as held in NWANCHO V. ELEM (2004) ALL FWLR (PT. 225) 107. The Respondent urged the Court to dismiss this appeal with substantial cost.

ISSUE THREE
In arguing this issue, the Respondents contends that in a bid to prove that there is valid auction of the 1st Appellants’ property, the Respondents gave notice of the sale by pasting auction notices on the premises of the mortgaged property and its environs, also there was a newspaper publication in the Daily Champion Newspaper which was pleaded and auction notice was sent by post to the local government authority in accordance with Section 19(1) Auctioneers Law of Oyo State Cap 14, Laws of Oyo State, even though the local government official testified that letter was not received by their office, however, there is presumption of receipt of the letter on the day it was delivered to post as held in BENIN ELECTRICITY DISTRIBUTION CO. PLC V. ESEALUKA (2013) LPELR-20159 and based on the above, the Appellants did not controvert with sufficient proof.

​Continuing, the Respondents submits that the Appellants alleged that the 1st Respondent instructed the 2nd Respondent to put up a mock auction, but privately invited the 3rd Respondent to deposit the sum of N2,000,000.00 in the account of the 1st Respondent as purchase price, that the property was undervalued and sold at a value way below that market value and that the sale was fraudulent but failed to support their allegation with evidence. The Respondents relied on EKA-ETE V. NIGERIAN HOUSING DEVELOPMENT SOCIETY LTD & ANOR (1973) 6 S.C. It was the contention of the Respondents that there was evidence to prove that the 2nd Appellant travelled to Brazil for 17 years without remitting a kobo to defray all or any part of the debt to the 1st Respondent and the 1st Respondent engaged the services of an auctioneer as contained in the mortgaged agreement which made provision for sale as valid and urged the Court to dismiss all the claims of the Appellants with substantial cost to the Respondents.

APPELLANTS’ REPLY BRIEF
In reacting to the Respondents brief of argument, the Appellants submits that releasing a judgment or writing same when an officer has ceased to be a judicial officer as in this case will amount to a breach of Section 294(5) of the 1999 Constitution, therefore to write the judgment and send to parties after 2 years is a breach of the Constitution. The Appellants relied on ARIORI & ORS V. MURAINO B O ELEMO & ORS (1983) LPELR 552. Again, the Appellants argued that the Respondents failed to controvert paragraph 2(i-ix) of the affidavit in support neither was there any part of the Respondents’ counter affidavit that controvert any of the Appellants assertions in their Affidavit and the law is trite that what is admitted need no further proof as held in EKE UMAZI NDUKWE V. THE LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE (2007) LPELR-1978 and SKYE BANK PLC & ANOR V. CHIEF MOSES BOLANLE AKINPELU (2010) LPELR-3073.

​On issue two, the Appellants submits that the Respondents condemned the signature of Mrs. Sherifat Iyabo Adepoju who was called to bar in 1998, however, Mrs. Sherifat Adepoju been a certified legal practitioner, wrote her name and also appended her signature in the signature column of the Originating Summons which satisfied the requirement of law regarding signing of documents. The Appellants cited GEORGE ABI V. CENTRAL BANK OF NIGERIA & ORS (2001) LPELR-4192 and all the cases cited by the Respondents are inapplicable in this case.

On issue three, the Appellants contends that in proof of their case, the Appellants called PW1, the photographer who took pictures at the event and tendered Exhibits A, A1, & A2 and the Respondent pasted Auction notice on the day of sale which is contrary law as the law stipulates 7 days notice as held in TAIWO V. ADEGBORO (2011) LPELR-3133, IDEAL FINANCE AND INVESTMENT COMPANY LIMITED & ANOR V. FINANCIAL OPPORTUNITY CENTRE LIMITED & ORS (2015) LPELR-24646 and MR. GABRIEL IDOWU OLAWOYE V. ALHAJA K. A. BELLO (2015) LPELR-24475. The Appellants further asked how the cheque issued can have the same date with auction notice? and submits that it is clear that the cheque was already prepared for the exercise before knowing the actual price and approval of the 3rd Respondents’ bid by the 1st Respondent was done in their office before the proposed date of the auction, therefore, this is an act of fraud. The Appellants urge the Court to hold so, allow the appeal and set aside the ruling of the lower Court.

RESOLUTION
After a careful consideration of the Notice of Appeal, the Records of Appeal and the briefs of learned Counsel in the appeal, the Court observes that the Respondents donated 3 issues for determination, one of which is a jurisdictional issue (issue two) which must be considered first before other issues.

The question of jurisdiction is fundamental and once raised, it must be resolved before the Court can take any step in the matter, see BRITTANIA-U (NIG) LTD V. SEPLAT PETROLUEM DEVELOPMENT CO LTD & ORS (2016) LPELR-40007(SC) wherein the apex Court held thusly:
“It is a matter now trite that the jurisdiction of any Court is sacrosanct and fundamental to the adjudicatory powers of a Court and being a threshold issue can be raised at any point or stage of the proceedings even on appeal for the very first time. Therefore once brought up no other thing should be allowed within the focus of the Court than the resolution of that jurisdictional question. This critical position of the matter of jurisdiction being so since a Court merely wastes its precious time when it has embarked upon a trial when it has no jurisdiction since everything therein done including the decision and order come to naught, indeed a futile exercise. That is why it is a bounden duty of the Court to have that question settled first and foremost before it can go further into the matter before it. Stated differently, the Court must ask itself if it has the power to handle the case and so when it is brought to a Court’s attention that it lacks jurisdiction, it has to pause a while, answer the question first and if positive go forth but if in the negative the Court says so before anything else. I place reliance on Okarika v. Samuel (2013) 7 NWLR (Pt. 1352) 19; Osakue v. Federal College of Education (Technical) Asaba (2010) 10 NWLR (Pt. 1201) 1; Cadbury Nig. Plc v. F.B.I.R. (2010) 2 NWLR (Pt. 1179). A Court is naked and exposed without jurisdiction. It is therefore the general rule to determine jurisdiction first whilst it is an exceptional rule to take steps in defending or protecting the authority of the Court first before jurisdiction.” Per PETER-ODILI, J.S.C

​It will therefore be expedient to adopt the issues distilled by the Respondents and in doing so also resolve the sole issue formulated by the Appellants shall be determined.

However, issue three has no Ground of Appeal to support it and since the Respondents did not Cross-Appeal and did not file a Respondents’ Notice to contend, the issue cannot stand. I shall start with issue two which is a challenge to the competence of the appeal. Every issue for determination must be rooted in a Ground of Appeal, see ADELAJA V. FANOIKI & ANOR (1990) LPELR-110(SC) wherein the apex Court held thusly:
“It is now fairly well settled that the issues for determination in the appeal formulated must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal filed. Since they arise from the grounds of appeal, the issues ought to take account of the grounds of appeal and cannot raise issues outside their contemplation. Since the issues for determination are highlights of the grounds of appeal, they usually are framed in terms of related grounds of appeal supporting the same issue. Hence the issues for determination are usually less but never more than the number of the grounds of appeal filed.” Per KARIBI-WHYTE, J.S.C
​When a party formulates an issue which is not premised on a ground of appeal, it must be discountenanced. Issue three is in that category and must be struck out for lacking foundational basis. It is hereby struck out.

ISSUE TWO
WHETHER THE WRIT OF SUMMONS AND STATEMENT OF CLAIM FILED BY THE APPELLANT WAS SIGNED BY A LEGAL PRACTITIONER WHOSE NAME IS ON THE ROLL AT THE SUPREME COURT OF NIGERIA AND ELIGIBLE TO PRACTICE LAW IN NIGERIA
This is a jurisdictional issue wherein the Respondents contended that the writ was not initiated according to law. The law is trite that only a legal practitioner enrolled at the Supreme Court is qualified to frank processes meant to be filed in Court.

And jurisdiction is activated upon the fulfillment of 3 features as held in MADUKOLU V. NKEMDILIM (SUPRA) namely:
1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another.
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction
3. The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The relevant feature is that a matter must come before the Court initiated by due process of law and upon the fulfillment of all conditions precedent to exercise of jurisdiction.

It is the law that only the party himself or the legal practitioner must sign processes and in a particular manner, as stated in the case ofSLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (Pt. 1252) 317, the Supreme Court per Rhodes-Vivour, JSC stated thus:-
“All processes filed in Court are to be signed as follows: First, the signature of counsel, which may be any contraption. Secondly, the name of counsel written. Thirdly, who the counsel represents. Fourthly, name and address of legal firm.
Once it cannot be said who signed a process, it is incurably bad, and rules of Court that seem to provide a remedy are of no use as a rule cannot override the law (i.e, the Legal Practitioners Act).” In the lead judgment, Onnoghen JSC (as he then was) at pages 331-332 (paras H-A) held that:
“… A process prepared and filed in a Court of law by a legal practitioner must be signed by the legal practitioner and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.”

The Respondents contended that the writ of summons was signed by a person who is not a legal practitioner. Failure to initiate a writ or initiating process according to law is fatal and it means the suit is incurable and irredeemably defective, see KIDA V. OGUNMOLA (2006) LPELR-1690(SC) wherein the apex Court held thusly:
“…the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge.” Per MUSDAPHER, J.S.C
​Also see the case of NZOM & ANOR V. JINADU (1987) LPELR-2143(SC) wherein the apex Court held thus:
“Once a writ is void, no amendment of the particulars, title etc. can save it. It is incurably bad and all the amendments effected are equally nullities. See Macfoy v. UAC Ltd. (1962) AC 152; Sken Consult (Nigeria) Ltd. v. Godwin Ukey (1981)1 SC 6 at 9; Opebiyi v. Oshoboja (1976) 9-10 SC 195 at 201.” Per OBASEKI, J.S.C
Failure to initiate according to law divests the Court of jurisdiction, see DR. BRAITHWAITE VS SKYE BANK PLC (2012) 12 SC (PT. 1) Page 1 and AKINGBOLA & ANOR V. IGBE & ORS (2018) LPELR-44155(CA) wherein the Court held thusly:
“It is also settled by case law that a writ of summons is the originating process by means of which actions are commenced. The competence of such process is a pre-requisite for a valid and subsisting claim. Therefore, where a process fails to comply with the requirement of the law regulating its procedure, the Court cannot assume jurisdiction thereon. See. Therein it was also held that failure to commence a suit with a valid writ and/or statement of claim goes to the root of the action, since the conditions precedent to the exercise of the Court’s jurisdiction would not have been met to duly place the suit before that Court.” Per OSEJI, J.C.A

The objection was challenged by the Appellants who argued that a legal practitioner signed with name over the name of the law firm so the condition for a valid franking of processes was fulfilled. Looking at page 2 of the record of appeal, the writ of summons which is the initiating process, I find therein the following endorsement:
“SHERIFAT ADEPOJU
SIGNATURE
Letter ‘F’ before BIOYE OLOYEDE & CO
SOLICITORS & ADVOCATE”
​It is obvious that the relevant particulars were substantially written on the writ with only the party that Counsel represents missing and the signature should appear before the name which goes to form and not substance. The order in which the particulars were arranged may not be perfect order but to use that as reason to find that the writ was not initiated according to law would be absurd. To hold that the endorsement is contrary to law would amount to technicality. The important thing is for a legal practitioner to write his name, sign and state the firm for which he acts and name the party he represents all these except one are present here, the Court can presume the party’s Counsel represents, the process in this case, being a writ of summons, only Claimants and Plaintiffs take out writs of summons. I therefore cannot subscribe to the arguments of the Respondents that the writ was not issued by a legal practitioner known to law. The case of DPMS LTD & ANOR V AKERELE (2018) LPLER-45532(CA) relied upon by the Respondents is not applicable as in that case the name of Counsel was totally missing. The case of SLB CONSORTUIM V. NNPC (SUPRA) placed emphasis on the identity of who signs the initiating process because it must be a person known and called to the bar, see Section 2(1) and 24 of the Legal Practitioners Act which states:
2 (1) Subject to the provisions of this Act, a person shall be entitled to practise as a barrister and solicitor if, and only if, his name is on the roll.
24 “Legal Practitioner” means a person entitled in accordance with the provisions of this Act to practice as a barrister or as a barrister and solicitor, either generally or for the purposes of any particular office or proceedings;

The Respondents have not shown that Sherifat Adepoju was not called to the bar and therefore her name is not on the roll kept by the Supreme Court. Furthermore, the Respondents did not proffer arguments on the import of the letter ‘f’ and its legal implications, that line of argument is deemed abandoned and discountenanced.

On the objection to jurisdiction argued as issue two, I resolve it in favour of the Appellants and hold that the writ was initiated according to law and therefore the lower Court had jurisdiction to determine the matter.

ISSUE ONE
WHETHER THE REFUSAL TO GRANT THE APPLICATION BROUGHT BY THE APPELLANTS/CLAIMANTS SEEKING TO SET ASIDE THE JUDGMENT OF HIS LORDSHIP HONOURABLE JUSTICE B.O. ADENIJI (RTD) WAS RIGHTLY HELD OR NOT?
This issue is in substance the same with the sole issue distilled by the Appellants and it states thus:
Whether the learned trial Judge Hon. Justice S.A. Akinteye was right in dismissing the Appellants’ application for setting aside the judgment of His Lordship Hon. Justice B. O. Adeniji (RTD) delivered after 2 years of his Lordship’s retirement.

​The ruling challenged was premised on an application brought by the Appellants seeking the following order:
“Setting aside the judgment of this Honourable Court released on the 4th day of August, 2016”

The grounds upon which the application was premised are thus:
1. The learned trial Judge had ceased to be a judicial officer before the judgment was delivered.
2. The judgment was delivered 2 years after the conclusion of the case, when the learned trial Judge had retired from service.

The application is supported by other relevant processes, such as the affidavit of 4 paragraphs duly sworn to by Taiwo Isiaka, a litigation clerk with the chambers of the Applicant’s Counsel.

Upon due consideration the lower Court dismissed the application on the ground that the Appellants failed to prove their assertion that the judgment was delivered two years after the retirement of the trial Judge, the Judge said thus:
“I wish to remark here that the Applicants did not controvert the deposition of the Respondents that the judgment was delivered on the 5th of August 2014 by filling a further or show better evidence that the judgment was delivered 2 years after his Lordship ceased to be a judicial officer.”

The affidavit in support was controverted and the Appellants did not file a further and better affidavit to traverse the denial and supply additional facts to prove that the judgment was delivered 2 years after the retirement of the trial Judge.

The purpose of a further and better affidavit was restated in the case of OLA V. UNILORIN & ORS (2014) LPELR-22781(CA) thusly:
“A further affidavit is needful when there is a counter-affidavit that has denied and contradicted the weighty and substantial facts in an affidavit evidence and further sets out new facts which are credible and which if believed by the Court will lead to a finding in favour of the Respondent. Per ONYEMENAM, J.C.A

​At the stage the application was argued, there was a challenge to the facts and since the burden of proof is on he who asserts, the Appellants had the burden of proving that the judgment was delivered after 2 years and after the Judge had retired from service. These are facts that should have been supported by documentary evidence because the retirement of a Judge is not done in secret and even if the lower Court knew when the other Judge retired he cannot fill in the gaps for the Appellants.

The law is also trite that when there are conflicts in affidavits, the best thing to do is to call oral evidence, see EZECHUKWU & ANOR V. I.O.C ONWUKA (2016) LPELR-26055(SC) wherein the apex Court held thus:
“Now, counsel on both sides are one and correctly too that where there is irreconcilable conflict in the deposition of contesting parties before a Court, the Court must resolve the conflict by calling oral evidence either from the deponents or other witnesses. The Court, in the face of such a persisting conflict, is not allowed to prefer one deposition to the other. Learned respondent counsel cannot be faulted in his further submission that the need to call oral evidence arises only where the conflict in the affidavits are significant and material. The need to call oral evidence, on the authorities, is obviated where the conflict is narrow in which case the Court is in a position to overlook same. In Eboh & Anor v. Oki & Ors (1974) NSCC (Vol.9) 26, this Court restated the principle thus:- “while a Court, in a given case, mayact on affidavit evidence, it would be unsafe to do so where the evidence is strongly contested and where issues of credibility can only be resolved upon the Court’s view of witnesses.” See also Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 and Atanda v. Olarewaju (1988) 4 NWLR (Pt.98) 394.” Per MUHAMMAD, J.S.C
I have read the affidavit in support and the counter affidavit and I find that there are conflicting and further evidence is required to state categorically that the assertion of the Appellant was true. Even the issue of not reading the judgment in open Court should have been supported with better evidence and the affidavit making such allegation should have been served on the Registrar of the Court to state his side of the story and even if he were to merely deny same. This was not done. The affidavit in support of the application made a serious allegation against the Court and the Registrar is the one to speak on how the judgment was delivered.
​The Judge of the lower Court in the face of conflicting facts erred and failed to call for oral evidence to resolve the conflict in the affidavits. The Appellants should have made an application for oral evidence to resolve the conflicts and establish the facts, see FALOBI V. FALOBI (1976) LPELR-1236(SC) wherein the apex Court held thusly:
“We have pointed out on numerous occasions that when a Court is faced with affidavits which are irreconcilably in conflict, the Judge hearing the case, in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. It does not matter whether none of the parties asked to be allowed to call any witness. Such omission by the parties should not be taken to amount to consent that affidavit evidence should be used in such circumstances. (See Akinsete v. Akindutire (1966) 1 All NLR 147 at p. 148; Eboh & Ors. v. Oki &Ors.(1974) 1 S.C.179 at pp. 189-190; Olu-Ibukun & Anor. v. Olu-Ibukun (1974) 2 S.C.41 at p. 48; and Uku & Ors. v. Okumagba & 3 Ors. (1974) 3 S.C. 35 at pp. 56, 64-65).” Per FATAYI-WILLIAMS, J.S.C

​Going by the date the written addresses were adopted, 10th of June, 2014 and date the judgment was delivered on the 5th day of August, 2014, it is obvious that the judgment was delivered within the Constitutional requirement of 90 days. Sections 294(1) and (5) are relevant for this consideration, they provide as follows:
“294. (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

​The Appellants should have done some more work by placing more facts in the supporting affidavit because most of the facts are facts that should be established by documentary evidence, they are Constitutional and judicial in nature. The relevant Court is a Court of record and the Judge in question is a Judicial Officer recognized by the Constitution and therefore his retirement, dates of sitting and judgments are covered by the Constitution and relevant laws. The Appellant cannot by viva voce establish facts that the law requires to be in documentary form.

Undoubtedly, the Constitution requires that judgments delivered must be released to parties within 7 days, see Section 294(1) of 1999 Constitution states as follows:
294. (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

​The Appellants had to apply for a copy of the judgment but as observed by the lower Court, the Appellants failed to annex a copy of their application for their copy of the judgment after the 7 days required by the Constitution. Though the date of certification buttresses what the Appellants stated, however, the date of certification is not usually the date the judgment is delivered, it could be delivered and certified same day but in this case, the Appellants deposed to the fact that it was only certified upon the application for certified true copy so the date of certification is not proof of date of delivery. It is the judgment that states when it was delivered.

Related to above, the argument that the judgment was not read out in Court was stoutly denied by the Respondents, therefore the Appellants needed to put in more facts which could have silenced the denial, this was not done.

A further affidavit should have been filed and is necessary when there is a counter-affidavit that has denied and contradicted weighty and substantial facts in affidavit in support of evidence and it further set out new facts which are credible and which if believed by the Court will lead to a finding in favour of the Respondents, see GLOBE FISHING INDUSTRIES LTD V COKER (1990) 7 NWLR (PT. 162) 265 and OKEREKE V EJIOFOR (1996) 3 NWLR (Pt. 434) 90.

​Generally, a Court has the inherent power to set aside its own judgment under certain conditions, the most common are when the judgment was obtained in default of procedural rules necessary for the initiation of the suit and those given without jurisdiction.

See SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC) where the apex Court held thusly:
“It is true and well settled that a Court has an inherent jurisdiction to set aside its own judgment where the conditions have been met by the applicant. These are where the judgment sought to be set aside was obtained on failure to comply with procedural rules. See Evans v. Bartlam (1937) AC. 473.”
Fundamentally, an application to set aside a judgment is not granted as a matter of course, there are conditions to granting such applications particularly by a Court of coordinate jurisdiction. See the case of COVALENT OIL & GAS SERVICES LTD & ANOR V. ECOBANK (NIG) PLC & ANOR (2021) LPELR-53391(CA) where the Court held thus:
“…Having said that, there are however situations where the Court is permitted to exercise jurisdiction, to set aside its own judgment or the judgment of a Court of co-ordinate jurisdiction. This includes, where the judgment is entered in default of the defendant’s appearance or in default of pleadings; where the judgment was obtained by fraud; where the judgment breached the fundamental right of a party; and where the judgment will workinjustice on one of the parties; See U.B.A. Plc v. Ajileye (1999) 13 NWLR (pt. 633) 166; Okafor v. A.G. Anambra State (1991) 6 NWLR (pt. 200) 659 and LSDPC v. Adeyemi-Bero (2005) All FWLR (pt. 252) 486 at 503. A Court has inherent jurisdiction to set aside its own null and void decision or order and also the null and void judgment of a Court of co-ordinate jurisdiction. See SKENCONSULT V. UKEY (1981) SC 6. A fortiori a person whose interest is affected by such decision can come to Court without much ado to have it set aside ex debito justitiae by the same Court. See EGBUZIEM v. NRC (1994) 3 NWLR (pt. 330) 23 at 33. Furthermore, in setting aside a void order or judgment it does not matter which Judge, be it the Judge that issued the alleged void order or another Judge of the Court of concurrent jurisdiction that sets aside the other. The order being null and void can be set aside by the Judge who made it or another Judge of the same Court through a judicial pronouncement without the necessity of an appeal. Furthermore, in setting aside a void order or judgment it does not matter which Judge, be it the Judge that issued the alleged void order or another Judge of the Court of concurrent jurisdiction that sets aside the other. The order being null and void can be set aside by the Judge who made it or another Judge of the same Court through a judicial pronouncement without the necessity of an appeal.” Per MUSTAPHA, J.C.A
The settled and accepted conditions under which a Court could set aside a judgment are:
i. Lack of jurisdiction;
ii. Fraud and misrepresentation;
iii. Default of appearance of certain rules of Court:
iv. Slip rule
These conditions and others were restated in the case of APC V. AGUMA & ORS (2020) LPELR-52309(CA) as follows:
“This Court has the power to set aside its decision in the following circumstances: –
1. Where the judgment was obtained by fraud or deceit either in the Court or of one or more of the parties.
2. When the judgment is a nullity in which case a person affected by such order is entitled ex debito justitiae to have it set aside.
3. When it is obvious that the Court was misled into giving such judgment under a mistaken belief that the parties consented to it.
4. Where in a cross-appeal, the respondent’s cross-appeal was not considered in the judgment.
5. Where the judgment was given in the absence of jurisdiction; and
6. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See DIKE VS. STATE (2018) 13 NWLR (PT. 1635) 35 SC; ELIAS VS. ECOBANK NIG. PLC (2017) 2 NWLR (PT. 1549) 175 CA; TOMTEC (NIG) LTD VS. FHA (2009) 18 NWLR (PT. 1173) 358; JEV VS. IYORTYOM (2015) 15 NWLR (PT. 1483) 484.”
An Applicant has the responsibility of placing sufficient materials before the Court to warrant granting the application. Once an Applicant can show good and sufficient cause, the application will be granted in the interest of justice. See WILLIAMS VS. HOPERISING VOLUNTARY FUNDS SOCIETY (1982) 1-2 SC 145; N. N. S. CO. LTD VS. ESTABLISHMENT SIWA OF VADUZ (1990) 7 NWLR (PT. 164) 526.

​The question is whether the Appellants raised any of the above named conditions as a ground for the application? The facts deposed to in the affidavit in support did not allege any of the conditions and the grounds upon which the application was premised did not also name any of the conditions. Other than the conditions named above, the Court of coordinate jurisdiction cannot set aside the judgment of a coordinate Court. Other situations, would generally require the filing of an appeal against the decision. Assuming the Appellants established that the judgment was delivered after 2 years or that the Judge did not read out the judgment, it is the Appellate Court that has the jurisdiction to set it aside and not a Court of coordinate jurisdiction who cannot sit on appeal on the judgment of a Court of coordinate jurisdiction. I agree with the Respondents that the trial Court was functus officio with regards to the judgment sought to be set aside.

Functus officio was defined in the case of ALOR & ANOR V. NGENE & ORS (2007) LPELR-431(SC) and BUHARI V. INEC & ORS (2008) LPELR-814(SC) wherein the apex Court held thus:
“Functus officio ordinarily means a task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. See Black’s Law Dictionary, 6th edition, page 673. The latinism means in practice the idea that the specific duties and functions that an officer was legally empowered and charged to perform have now 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. In our context, a Judge who has decided a question brought before him is functus officio, and cannot review his decision. See also Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275; Onwuchekwa v. CCB (1999) 5 NWLR (Pt. 603) 409; Anyaegbunam v. Attorney-General of Anambra State (2001) 6 NWLR (Pt. 710) 532; INEC v. Nnaji (2004) 16 NWLR (Pt. 900) 473. ” Per TOBI, J.S.C
The High Court having delivered the judgment cannot revisit the said judgment with a view to making correction, setting it aside or any other thing outside the conditions named above for setting aside a judgment delivered.
Issue one is hereby resolved against the Appellants.

​Flowing from above and having resolved issue two in favour of the Appellants and issue one being the main issue in the appeal was resolved against the Appellants, the appeal fails and is unmeritorious. Inview of the above resolution the appeal lacks merit and is hereby dismissed. The ruling of HON. JUSTICE S. A. AKINTEYE in Suit No.: I/1099/2001 delivered on the 12th July, 2017 is hereby affirmed.
Each party to bear its cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA.

It is true that a law firm, such as “Bioye Oloyede & Co.” is not a recognized legal personality capable of instituting or defending actions in our Courts of law, because such a law firm is a mere business name which is enrolled as a legal practitioner, under the Legal Practitioners’ Act, Cap C207, Laws of the Federation of Nigeria, 1990 (as amended). See Emmanuel Okafor v. Augustine Nweke (2007) 10 NWLR (Pt. 1041) 1043; SLB Consortium Limited v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317; Prof Vincent Nnamdi Okwuosa v. Prof. N. E. Gomwalk & Ors. (2017) 9 NWLR (Pt. 1570) 259 and Ministry of Works & Transport, Adamawa State v. Alhaji Isiyaku Yakubu (2013) 6 NWLR (Pt. 1351) 481.

​In this case, the writ of summons complained of was signed by a human being — “Sherifat Adepoju” who has been shown by the Appellants to be a legal practitioner, who was called to the Nigerian Bar in 1998. The process was signed by a legal practitioner and it is competent.

It is for the foregoing reasons that I resolve Issue 2 raised by the Respondents in favour of the Appellants. However, for the very elaborate reasons given in the leading judgment, this appeal fails, and I also dismiss it.
I abide by all the orders made by my learned brother.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR, JCA. I am in complete agreement with his Lordship that the Appellants ought to have done more work by placing more materials before the Court in support of their application.

The law is settled that an applicant who fails to place sufficient materials before the Court to justify an exercise of its discretion in his favour does so at his own peril. See S & D CONSTRUCTION COMPANY LIMITED VS. AYOKU (2011) 13 NWLR (PT. 1265)487; IN RE:  YAR’ADUA (2011) 17 NWLR (PT. 1277) 567.
In this appeal, the Appellants as Applicants had a duty to place sufficient materials before the lower Court to demonstrate that the judgment subject of complaint was delivered two years after the Judge had retired from service. My view is that even where the facts required to be placed before the Court are such of which the Court may take judicial notice, the Court still has a discretion to require that requisite facts be properly placed before it. See Section 122 (4) Evidence Act, 2011 which provides as follows:
“If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document, as it may consider necessary to enable it to do so.”

The foregoing provision .is more important to this case because what the Appellants sought was the exercise of discretion, that is an equitable relief. It follows that principles of equity are applicable. All cards must be placed on the table.

He who seeks equity must come with clean hands. See KARAYE VS. WIKE (2019) 17 NWLR (PT. 1701)355; IFEKANDU VS. UZOEGWU (2008) 15 NWLR(PT.1111)508.

​It is for the foregoing and the more detailed reasons adumbrated in the lead judgment that I too hold that this appeal lacks merit and should be dismissed. It is also dismissed by me.

Appearances:

Prince Abioye Oloyede Asanike For Appellant(s)

Chief Adewuyi Adeyemo with him Mayowa Adeyemo and V.C Maduagwu For Respondent(s)