ECOTRADE LIMITED v. ALHAJI (CHIEF) SIKIRU ALABI MACFOY & ORS
(2015)LCN/7942(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of July, 2015
CA/L/199/2008
RATIO
COURT: FUNCTUS OFFICIO; WHEN DOES THE COURT OR TRIBUNAL BECOME FUNCTUS OFFICIO AND THE EXCEPTION TO THE RULE
The position of the law is that once a court or tribunal delivers its final judgment in a case before it, it becomes functus officio with respect to that case; it has no power to reopen the case for the purpose of making corrections or changing its opinion. The exception to this is where there is the need to make minor permissible correction under the slip rules. See. NIGERIAN ARMY v. IYELA [2008] 18 NWLR (PT. 1118) 115; EMODI v. KWENTOH [1996] 2 NWLR (PT. 433) 656; UMUNNA v. OKWURAJIWE [1978] 6 & 7 SC 1 at 9; BERLIET NIG. LTD. v. KACHALLA [1995] 9 NWLR (PT. 420) 478. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT: POWER OF THE JUDGE OF THE HIGH COURT; THE POWER OF THE JUDGE OF THE HIGH COURT TO SET ASIDE A JUDGEMENT GIVEN IN THE ABSENCE OF A PARTY
However, the power to set aside a judgment given in the absence of a party could be exercised by any Judge of the High Court, not necessarily the Judge who gave the Judgment. See EMODI v. KWENTOH (supra); WIMPEY LTD. v. BALOGUN [1986] 3 NWLR (PT. 128) 324; OMOREGBE v. PENDAR LAWANI [1980] 3-4 SC 108. The apex court in the case of BELLO v. INEC [2010] 8 NWLR (PT. PT. 1196) 342; [2010] LPELR-767, page 36, paras. A-B, per Mohammed, JSC and page 79, paras. D-F, per Adekeye, JSC respectively held thus:
“A default judgment is one given in default of appearance or pleadings against a defendant or a plaintiff in a cross-action whose names appear as such defendant or plaintiff in the record of the trial Court.” “Any judgment in default of pleadings or appearance is not a final judgment since both parties were not heard on the merit of the case. The judgment was obtained by failure of the defendant to follow certain rules of procedure. Where the court has not pronounced a judgment on merits or by consent, such a judgment may be set aside by any trial court in the judicial division where the judgment was obtained.” See also MOHAMMED v. HUSSEINI [1998] 14 NWLR (PT. 584) 108; UTC (NIG.) LTD. v. PAMOTEI [1989] 2 NWLR (PT. 103) 244. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT: THE DUTY OF THE COURT; THE DUTY OF THE COURT TO HEAR AND DETERMINE ALL APPLICATIONS BEFORE IT AND WHETHER THE COURT IS BOUND TO GRANT EVERY RELIEF SOUGHT IN THE SAME
The law is trite that for the purpose of fair hearing, all applications pending before a court must be heard on its merit. See NALSA & TEAM ASSO. v. NNPC [1991] 8 NWLR (PT. 212) 652; OTAPO v. SUNMONU [1987] 2 NWLR (PT. 58) 587. The court is not to be compelled to grant all prayers in the application, grant of same is discretionary. The nature of a motion on notice is interlocutory because it does not entail the filing of pleadings. It is only supported by affidavit evidence and a written address which differs from averments in statement of claim or statement of defence. See DIRECTOR OF SSS v. AGBAKOBA [1999] 3 NWLR (PT. 595) 3. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PRACTICE AND PROCEDURE: WHETHER AN INTERVENER CAN INITIATE FRESH MATTERS, WHO IS AN INTEVENER AND WHETHER THE COURT IS BOUND TO GRANT THE PRAYERS OF THE INTERVENER
It is imperative to note that the leave granted an intervener in a suit of this nature is to come into the matter to protect his interest in the property in dispute and not to initiate a fresh matter. An intervener is a person who was not originally a party in the suit but claims an interest in the subject matter. See TAIWO v. ADEGBORO [2011] 11 NWLR (PT. 1259) 562; DAUGHTERS OF DIVINE LOVE CONGREGATION & ORS. v. UGWU [2013] LPELR-22896. An Intervener joins a suit at the behest of the court as in the instant case. The power of the court to grant the prayers of the intervener contained in its motion is discretionary; howbeit, the court must hear all applications before it and decide either way. See DINGYADI v. INEC (No. 2) [2010] 18 NWLR (PT. 1224) 154; MOBIL PROD. (NIG.) LTD. v. MONOKPO [2003] 18 NWLR (PT. 852) 346; KOTOYE v. SARAKI [1991] 8 NWLR (PT. 211) 638; OKORO v. OKORO [1998] 3 NWLR (PT. 540) 65. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
LAND LAW: REGISTRATION OF A LAND; STEPS AND PROCEDURES TO FOLLOW BEFORE THE REGISTRAR GUARANTEES THE LAND
Registration is not automatic; there are steps and procedures to follow before the Registrar guarantees the land. See ONAGORUWA v. AKINREMI [2001] 13 NWLR (PT. 729) 38.
There is presumption of regularity in the Deed of Assignment executed as well as the registration of title. The provision of the Evidence Act 2011 is clear on this. Section 168 (3) & (4) provides:
“3. When a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duty of his trustees to execute in order to perfect his title.
4. When a minute is produced purporting to be signed by the chairman of a company incorporated under the Companies and Allied Matters Act and purporting to be a record of proceeding at a meeting of the company or of its directors, it is presumed, until the contrary is shown, that such meeting was duly held and convened and that all proceeding at the meeting have been duly had, and that all appointments of directors, managers and liquidators are valid.”
The act of execution of the Deed of Assignment by the parties is a presumption that the sale is valid and regular. The covenants in the transfer instrument evidently convey the thoughts of the parties in the transaction. See IRP NIG. v. OVIAWE [1992] 5 NWLR (PT. 243) 572; ODUBEKO v. FOWLER [1993] 9 SCNJ 185; MARANRO v. SALAMI ADEBISI [2007] LPELR-4663. On this note, the Judgment Creditor/Respondent is estopped from denying the regularity and/or genuineness of the contents of the Deed of Assignment. The Respondent who sat on the Board of Directors meeting where the resolution to transfer the properties to Nigeria Oil Mills Ltd and also executed the Deed of Assignment cannot turn around to deny the valid sale of the properties. See Section 169 of Evidence Act 2011.
I find merit in the Intervener/Appellant’s application and I am of the view that title in the properties was validly transferred to the Appellant. Therefore, the Order of the Lower Court made on 3rd of December, 2004 granting leave to levy execution on the properties in dispute was wrongly granted. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
Before Their Lordships
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKURJustice of The Court of Appeal of Nigeria
Between
ECOTRADE LIMITED
(APPELLANT/INTERVENER)Appellant(s)
AND
1. ALHAJI (CHIEF) SIKIRU ALABI MACFOY
(JUDGMENT CREDITOR/RESPONDENT)
2. BERNARD CALIL
(RESPONDENT)
3. NIGERIA OIL MILLS LTD.
4. JET FLEET NIGERIA LTD.
5. NORTHERN CONTAINERS LTD.
6. NIGERIA METAL FABRICATIONS LTD.
7. ANIMAL FEEDS NIGERIA LTD.
8. SOAP AND OIL PRODUCTS NIGERIA LTD.
9. NOM EXPORT LTD.
(JUDGMENT DEBTORS/RESPONDENTS)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This Appeal is from the Ruling delivered by Honourable Justice R.I.B. Adebiyi of the High Court of Lagos State on the 30th of November, 2007 in Suit No. LD/593/2002, wherein the learned Judge declined to determine ownership of the property in dispute on the grounds that the application was brought after judgment had been entered in the suit.
The Judgment Creditor/Respondent had by its Statement of Claim dated and filed on 17th July, 2002 sought the following reliefs against the 2nd -9th Respondents:-
(a) Jointly and severally, against the 1st and 2nd Defendants the sum of N39,365,000.00.
(b) Jointly and severally against the 1st & 3rd Defendants the sum of N230,000.00.
(c) Jointly and severally against the 1st and 4th Defendants the sum of N230,000.00.
(d) Jointly and severally against the 1st and 5th Defendants the sum of N230,000.00.
(e) Jointly and severally against the 1st and 6th Defendants the sum of N230,000.00.
(f) Jointly and severally against the 1st and 7th Defendants the sum of N230,000.00.
(g) Jointly and severally against the 1st and 8th Defendants the sum of N400,000.00. Total N42,585,000.00.
(h) And interest on the above sums at 21% per annum until judgment and thereafter at 6% per annum until final liquidation.
The Intervener/Applicant by its Motion on Notice dated and filed on 7th of December, 2005 prayed the trial court for the following orders:
“1. An Order deeming that the properties situate at 27/29 Park Lane and 2/4 Freetown Road, Apapa, Lagos both registered under the Title No. MO1265 of the Lands Registry, Lagos belong to the Intervener/Applicant.
2. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
TAKE FURTHER NOTICE that the ground upon which this application is brought is that this Honourable Court made an Order on the 23rd of November, 2005 granting leave to the Intervener/Applicant to intervene in this matter by filing an application for the purpose of proving ownership of the aforementioned properties.”
The facts of the matter leading to this appeal is that the Judgment Creditor/Respondent was a Director and Company Secretary to the 2nd to 9th Respondents (2nd -8th Defendants in the Lower Court) in this appeal – Nigeria Oil Mills Limited, Jet Fleet Nigeria Limited, Northern Containers Limited, Nigeria Metal Fabrications Limited, Animal Feeds Nigeria Limited, Soap and Oil Products Nigeria Limited and Nom Export Limited. The 2nd -9th Respondents never participated in the matter and the appeal was discontinued against them on the 16th of June, 2009.
In a meeting of the Board of Directors of the parent company (3rd Respondent) on the 16th of March, 2001 with the Judgment Creditor and Chairman of the companies present, the Board resolved that the shares of the parent company be sold to BUA International Limited. The Board also resolved that the property registered as Title No. MO 1265 (4 blocks of six flats each) which belonged to the parent company should be excluded from the sale and transferred to Ecotrade S.A. or its assignee.
To this effect, a Deed of Assignment dated 4th April, 2001 was executed between Nigeria Oil Mills Limited and the Appellant. The Judgment Creditor/Respondent signed same as the Company Secretary to the parent company. The Appellant took possession immediately but due to financial constraints could not perfect its title until around August 2004. On 7th April, 2001, the shares of the companies (including 2nd -9th Respondents) were sold to BUA International Limited. Consequent upon this, all Directors as well as the Judgment Creditor resigned from the Board.
The Judgment Creditor/Respondent instituted an action in Suit No. LD/593/02 against the sold companies claiming various sums of money from them jointly and severally totaling N42,585,000 for professional and consultancy services allegedly rendered to the companies before they were sold. The 1st Defendant (former chairman of the sold companies) to the suit entered appearance and filed his pleadings. However, the other defendants after being served did not respond. On the 29th October, 2003, the trial court enter judgment in the sum of N42,585,000.00 against the 2nd -8th Defendants in default of appearance and defence. Subsequently, the Judgment Creditor/Respondent applied for leave to sell the property he participated in transferring to the Appellant in 2001 in order to satisfy the Judgment he obtained against the 2nd Defendant. The application was granted on the 3rd of December, 2004. Counsel to the 1st Defendant at the trial court intimated the Directors of the Appellant of the order of attachment against its property in December 2004. Counsel to the Appellant filed an application on the 20th December, 2004 praying the trial court to set aside the order of attachment made on the 3rd of December, 2004. This application was withdrawn and substituted with another application dated 18th February, 2005 praying the trial court for leave to intervene in the matter as an interested party. The learned trial Judge found that the Judgment Creditor/Respondent signed the Deed of Assignment transferring the property in dispute to the Appellant and held that it will be in the interest of justice to allow the Intervener/Appellant to come into the matter to enable the court determine ownership of the property in dispute since execution has not been levied.
The above Ruling was delivered on the 23rd November, 2005 and the learned trial Judge also ordered that the Intervener/Appellant should file an application within fourteen days to enable the court determine ownership of the property in dispute. The Appellant’s counsel filed an application on the 7th December, 2005 in that regard. The Court delivered Ruling on the application on the 28th April, 2006 wherein the trial Judge stated that the Ruling would be put in abeyance to enable parties adduce oral evidence to resolve conflicts in affidavit evidence and also to give the Intervener an opportunity to tender the title documents through the witness box.
Subsequently, the Intervener/Appellant through its sole witness established that she bought the property in dispute from 2nd Defendant (Nigeria Oil Mills Limited) in April, 2001 and that the Claimant/Judgment Creditor was aware of the transaction in the sense that apart from attending a Board meeting where it was resolved that the property should be transferred to the Appellant, he also signed the Deed of Assignment. Intervener/Appellant has been in exclusive possession and Governor’s consent to the transaction has been obtained. The Judgment Creditor on his own part maintained that the property in dispute still belonged to the 2nd Defendant (Nigeria Oil Mills Limited). He stated that the transfer of the property to the Intervener/Appellant in April 2001 was not proper. He further said he signed a blank Deed of Assignment in that regard as an internal arrangement and that he should be allowed to levy execution on the property.
Counsel on both sides filed and adopted written address and on the 30th November, 2007 the learned trial Judge delivered ruling without determining ownership of the property in dispute on the grounds that the application was brought after Judgment had been entered in the suit.
Dissatisfied with the Ruling, the Intervener/Appellant filed a Notice of Appeal, dated 3rd of December, 2007 against the said Ruling of Adebiyi, J.
The Intervener/Appellant’s Brief of Argument is dated and filed on 22nd of June, 2011; same was settled by Charles Ohaja of Elim Solicitors. The Respondent’s Brief of Argument is dated and filed on 27th of July, 2011 and settled by Ugo Alionye Esq. of St. Matthew-Daniel, Balogun & Associates. The Intervener/Appellant also filed a Reply Brief dated 11th of August, 2011 and filed 12th August, 2011.
The Intervener/Appellant distilled a sole issue for determination as follows:
“Whether the learned trial Judge was right in declining to determine ownership of the property in dispute on the grounds that the Intervener’s application in that regard was brought after judgment had been entered in the suit.”
The Judgment Creditor/Respondent also distilled one issue for determination in its brief thus:
“Whether the trial court was right under the circumstances of this case in dismissing the Intervener/Applicant’s application dated 7th December, 2005 for not being in accordance with the provisions of law.”
The issues for determination formulated by both counsel to this appeal are the same thing save for the manner in which they are phrased. Therefore, I will adopt the sole issue formulated by the Intervener/Appellant in the determination of this appeal.
ISSUE ONE
Learned Counsel to the Intervener/Appellant in his argument stated that once a Judge delivers Judgment in a matter, he becomes functus officio. However, for the Judge to become functus officio, the decision or order delivered must have an element of finality and be a judgment on the merit. He relied on UKACHUKWU v. UBA [2005] 18 NWLR (PT. 956) 1; ONYEMOBI v. PRESIDENT ONITSHA CUSTOMARY COURT [1995] 3 NWLR (PT. 381) 50; MOHAMMED v. HUSSEINI [1998] 14 NWLR (PT. 584) 108 at 139 paras A-C. Appellant stated further that the judgment entered by the learned trial Judge on the 29th October, 2003 against the 2nd -8th Defendants was in default of appearance and defence and that the Judge cannot be functus officio since the decision was not given on merit. The judgment referred to did not affect the 1st Defendant since he entered appearance and filed a defence to the suit at the trial court and that the suit was still subsisting against him. Learned counsel to the Appellant contended that there was need for an intervention of the Intervener/Appellant, though not being a party to the suit, because of the order of attachment against its immovable property for the satisfaction of a judgment debt against the company that sold the property to her.
Learned counsel referred this court to Injunctions and Enforcement of Orders by Afe Babalola, SAN at page 29 to state the position of the law that any person aggrieved by an order or judgment of a court of law can apply to have it set aside in appropriate cases or to apply for leave to appeal against the order or judgment with a view to having it set aside. Appellant’s counsel further submitted that the learned trial Judge was not functus officio and thus reserved the right to set aside the order which was obtained by suppression and misrepresentation of facts and that appeal is not only the remedy available to the Intervener. It is after ownership has been determined that the Intervener will have the locus to ask the court to set aside the order of attachment.
Counsel contended that the next step to take after the application of the Intervener to determine the ownership of the property would have been to ask the court to set aside the order of attachment but the court decided to be neutral and frustrated the Intervener by dismissing the application he ordered the Intervener to file without looking into the merits of same and also awarded costs of N10,000.00 against the Intervener. Learned counsel posed questions that what was the essence of the leave granted the interested party to intervene in the suit, why the presumption that the court was functus officio two years after granting the Intervener leave to join the suit and why the trial for the resolution of conflicts in affidavits evidence and final addresses by counsel on both sides? Counsel to the Appellant relied on ONYEMOBI v. PRESIDENT ONITSHA CUSTOMARY COURT (supra) to submit that aggrieved parties should be able to get redress in court when they come to court and not otherwise.
He submitted that the learned trial Judge abdicated his duty by refusing to look into the merits of the application he ordered the Intervener/Appellant to file in November 2005. Counsel stated that the court blew hot and cold as well as the Judgment Creditor/Respondent who signed a Deed of Assignment in April 2001 indicating that Nigeria Oil Mills Limited has transferred its title to the property in dispute to the Intervener. Subsequent to this in 2004, the Judgment Creditor/Respondent obtained an order to sell the same property to recover money owed to him by Nigeria Oil Mills Limited. It made the trial court to believe that the transfer of the property in 2001 was not proper. It also took undue advantage of the fact that the Intervener/Appellant had not perfected its title to the property.
Learned counsel to the Appellant finally urged this court to resolve the issue for determination in favour of the Appellant and set aside the Ruling of the trial Judge.
The Judgment Creditor/Respondent’s counsel in his Brief stated that the language of the trial court was clear and unambiguous in its ruling and its con should not be subject to conflicting interpretation. Counsel submitted that the judgment of the trial Court of 29th October, 2003 against the Defendant/Judgment Debtor was never appealed against; therefore it is a final judgment. Learned counsel to the Respondent argued that the intervener was not a party to the suit and that it does not lie on him to raise it in its address when no reference was made to the said judgment of 29th October, 2003 in its Notice of Appeal. Counsel further contends that the suit was discontinued wholly against the 1st Defendant and no appeal was filed against same, hence the trial court was functus officio in the main suit. The Intervener/Appellant not being a party to the suit against the judgment debtors cannot raise an appeal against it. Learned counsel stated that the Intervener/Appellant was aware of the judgment creditor’s application to levy judgment but stood by when its alter ego -the 1st Defendant challenged same and failed but did not appeal. He contended the Intervener’s application was fully heard and judgment pronounced on same and that the Appellant’s allegation on appeal that it was shut out is therefore misconceived.
He relied on KOTOYE v. SARAKI [1991] 8 NWLR (PT. 211) 638; HARRODS LIMITED v. ANIFALAJE & ANOR. [1986] 5 NWLR (PT. 43) 603 to submit that it amounts to intellectual dishonesty for the Appellants to give the impression that his application was not determined by the trial court. Counsel further stated the cases cited by the Appellant are not relevant to its contention. Learned Respondent’s counsel submitted that an application by way of motion on notice is an interlocutory application which must be based on an existing suit and that an interlocutory application is not in accordance with the Rules of law if it seeks a declaratory relief after final judgment has been entered in the matter as in the instant case. He relied on AUTO IMPORT EXPORT v. ADEBAYO [2003] 2 MJSC 44. Counsel contended that no court has power to determine ownership of landed property on an interlocutory application on the authorities of HART v. T.S.K.J. INS. LTD. [1997] 8 NWLR (PT. 517) 424; D.O. ORJI v. ZARIA IND. LTD. & ANOR. [1992] 1 NWLR (PT. 216) 124; OKOYA v. SANTILI [1991] 7 NWLR (PT. 206) 753. Learned counsel submitted that a claim for title is essentially contentious and such contentious matters are best commenced by writ of summons. He relied on Section 34 of the Sheriffs and Civil Processes Act; WATSON v. PARK ROYAL (CATERERS) LTD. [1961] 1 ALL ER. 346; Order VI Rule 6 of the Judgment Enforcement Procedure Rules. Furthermore, learned Respondent’s Counsel cited OKWUCHE v. DIBIA [1994] 2 NWLR (PT. 325) 195 to state that the onus is on the claimant claiming wrongful attachment of his property to prove that the property attached belongs to him. He stated the Judgment debtor could not show a valid transfer to the Claimant’s position as regard the property. He submitted the trial court was right in dismissing the Intervener/Appellant’s motion on notice for not being in accordance with the provisions of the law. He stated an application must come to court upon compliance with due process.
He cited MADUKOLU v. NKEMDILIM [1962] 1 ALL NLR 64. Respondent’s counsel stated that the Appellant’s assertion that it withdrew the appeal against the Defendant judgment debtors and in implication from his application because they never participated in the matter is not borne out by the record. The records show that all the Defendants were duly served with all the processes. He stated the Appellant’s action in withdrawing the relevant parties from this appeal is only aimed to shield them as they are the same persons with corporate veil. To this end, he submitted it is a fraud against the Judgment Creditor/Respondent and that it amounts to abuse of judicial process. The Respondent’s counsel submits that the Intervener/Appellant’s application at the court below was rightly dismissed and that the trial court was not in error.
In Reply, Intervener/Appellant’s counsel argued that the Appellant’s application dated the 7th of December, 2005 was not an interlocutory application. He defined the word “Interlocutory” according to the con of Black’s Law Dictionary, 5th Edition. Learned counsel cited the case of OGBAEGBE v. F.B.N. PLC. [2005] 18 NWLR (PT. 957) 357 to contend that the said application was filed in obedience to an order of the trial court after an order of attachment had been made. Counsel further adds that it was an intervener’s application and that it differs from a situation where rival claimants are fighting over property. The Intervener’s case was that the property belongs to it while the Judgment Creditor/Respondent’s claimed that the property belongs to Nigeria Oil Mills Limited and that it should be allowed to sell same in satisfaction of the judgment debt against Nigeria Oil Mills Limited. He reiterated that Nigeria Oil Mills Limited was sold to BUA International Limited in April 2001 and the Judgment Creditor/Respondent participated actively in the transfer of the property to the Intervener/Applicant. The company – Nigeria Oil Mills Limited did not participate in the proceedings at the Lower Court. He submitted that an Intervener’s application is distinguishable from interlocutory application and that the authorities cited by the Judgment Creditor/Respondent to the effect that the application must be anchored on a substantive suit was commenced by Writ of Summons.
On the issue of the application not being in accordance with the provisions of the law, Appellant’s counsel submitted while paraphrasing the ruling of the trial court on the leave granted the Intervener to intervene in the suit that the Appellant obeyed the order of the court before filing the application and same was filed within the time stipulated by the court. Learned counsel relied on Order 5, Rules 1 (2) and 2 (1) of the High Court of Lagos State (Civil Procedure) Rules 2004. Counsel also submitted that Respondent did not appeal against the order made by the trial judge on the 23rd of November, 2005. He stated the Respondent ought to have brought an application to set aside the said Appellant’s application if he is not pleased with the order made by the trial court. Intervener/Appellant’s counsel further submitted that the Respondent reacted to the application and witnesses from both sides testified to resolve conflicts in affidavit evidence in respect of the property in dispute. He cited REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION v. CHIDI ONWUEKWEIKPE [2009] 15 NWLR (PT. 1165) 592 to argue that the Respondent slept on his right to challenge the procedural irregularity he alleged by not raising an objection early but it allowed the proceedings to continue. Finally, Applicant’s counsel urged this court to allow the appeal and set aside the ruling of the trial court dated 30th of November, 2007.
In resolving the issue, I shall begin on the issue of the finality or otherwise of the judgment of the trial court delivered on the 29th of October, 2003. The Intervener/Appellant contended that it was not a judgment on the merit being judgment in default of appearance; therefore the trial court is not functus officio. The position of the law is that once a court or tribunal delivers its final judgment in a case before it, it becomes functus officio with respect to that case; it has no power to reopen the case for the purpose of making corrections or changing its opinion. The exception to this is where there is the need to make minor permissible correction under the slip rules. See. NIGERIAN ARMY v. IYELA [2008] 18 NWLR (PT. 1118) 115; EMODI v. KWENTOH [1996] 2 NWLR (PT. 433) 656; UMUNNA v. OKWURAJIWE [1978] 6 & 7 SC 1 at 9; BERLIET NIG. LTD. v. KACHALLA [1995] 9 NWLR (PT. 420) 478.
However, the power to set aside a judgment given in the absence of a party could be exercised by any Judge of the High Court, not necessarily the Judge who gave the Judgment. See EMODI v. KWENTOH (supra); WIMPEY LTD. v. BALOGUN [1986] 3 NWLR (PT. 128) 324; OMOREGBE v. PENDAR LAWANI [1980] 3-4 SC 108.
The apex court in the case of BELLO v. INEC [2010] 8 NWLR (PT. PT. 1196) 342; [2010] LPELR-767, page 36, paras. A-B, per Mohammed, JSC and page 79, paras. D-F, per Adekeye, JSC respectively held thus:
“A default judgment is one given in default of appearance or pleadings against a defendant or a plaintiff in a cross-action whose names appear as such defendant or plaintiff in the record of the trial Court.”
“Any judgment in default of pleadings or appearance is not a final judgment since both parties were not heard on the merit of the case. The judgment was obtained by failure of the defendant to follow certain rules of procedure. Where the court has not pronounced a judgment on merits or by consent, such a judgment may be set aside by any trial court in the judicial division where the judgment was obtained.”
See also MOHAMMED v. HUSSEINI [1998] 14 NWLR (PT. 584) 108; UTC (NIG.) LTD. v. PAMOTEI [1989] 2 NWLR (PT. 103) 244.
In the instant appeal, the Intervener/Appellant is not a party to the suit at the Lower Court wherein the default judgment was obtained, therefore the court in this respect has discharged its duty according to the Rules of court in respect of the default in appearance, except the judgment debtor therein applies for “setting aside of the judgment” or a notice of appeal is filed against same not being a final judgment. See the case of TENO ENG. LTD. v. ADISA [2005] 10 NWLR (PT. 933) 346; UGWU v. ABA [1961] ALL NLR 438; DOHERTY v. DOHERTY [1964] NMLR 144.
Respondent counsel in his argument contended that the Intervener was not a party to the suit which procured the judgment of 29th October, 2003; therefore the Intervener cannot rely on same on appeal except there is an appeal against it. A remedy in law is available to a person who is not a party to a suit where the judgment reached in the case affected him. In a situation like this, such a person is allowed in law to appeal with leave against the judgment as a person interested. See Section 243 (a) and (b) of the 1999 Constitution; BELLO v. INEC (supra).
On the need for the court to grant the prayers contained in the application of the Intervener, Respondent argued that the court is bound to hear and determine all applications before it; but the court is not bound to grant every relief sought in same. The law is trite that for the purpose of fair hearing, all applications pending before a court must be heard on its merit. See NALSA & TEAM ASSO. v. NNPC [1991] 8 NWLR (PT. 212) 652; OTAPO v. SUNMONU [1987] 2 NWLR (PT. 58) 587. The court is not to be compelled to grant all prayers in the application, grant of same is discretionary. The nature of a motion on notice is interlocutory because it does not entail the filing of pleadings. It is only supported by affidavit evidence and a written address which differs from averments in statement of claim or statement of defence. See DIRECTOR OF SSS v. AGBAKOBA [1999] 3 NWLR (PT. 595) 3. In the instant appeal, the Respondent contended that the motion on notice brought by the Intervener seeks a declaration of title to land when no substantive suit to which he is a party is pending. The forms of commencement of an action are clear in the provisions of the Rules of Court. See Order 3 Rules 1 (a) (i) and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004.
It is imperative to note that the leave granted an intervener in a suit of this nature is to come into the matter to protect his interest in the property in dispute and not to initiate a fresh matter. An intervener is a person who was not originally a party in the suit but claims an interest in the subject matter. See TAIWO v. ADEGBORO [2011] 11 NWLR (PT. 1259) 562; DAUGHTERS OF DIVINE LOVE CONGREGATION & ORS. v. UGWU [2013] LPELR-22896. An Intervener joins a suit at the behest of the court as in the instant case. The power of the court to grant the prayers of the intervener contained in its motion is discretionary; howbeit, the court must hear all applications before it and decide either way. See DINGYADI v. INEC (No. 2) [2010] 18 NWLR (PT. 1224) 154; MOBIL PROD. (NIG.) LTD. v. MONOKPO [2003] 18 NWLR (PT. 852) 346; KOTOYE v. SARAKI [1991] 8 NWLR (PT. 211) 638; OKORO v. OKORO [1998] 3 NWLR (PT. 540) 65.
In this appeal, the trial court ordered that the Intervener/Appellant be joined as intervener in order to determine the ownership of the property in dispute, yet the trial court discountenanced the oral evidence he called to resolve the conflicts in the affidavits and failed to determine the ownership of the properties. The Supreme Court in FALOBI v. FALOBI [1976] 9-10 SC (REPRINT 1) held:
“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…”
See also AKINSETE v. AKINDUTERE [1966] 1 ALL NLR 147; EBOH & ORS. v. OKI & ORS [1974] 1 SC 179; OLU-IBUKUN & ANOR. v. OLU-IBUKUN [1974] 2 SC 41; UKU & ORS. v. OKUMAGBA & 3 ORS. [1974] 3 SC 35.
The trial Judge ought to have considered the oral testimonies of parties in respect of the conflict in their depositions contained in the affidavit to determine the ownership of the properties. At page 468, paragraph 4 of the record, the trial Judge threw the oral evidence into the judicial dustbin and discountenanced the application of the Intervener.
The court is vested with power to hear and determine all applications before it. See DINGYADI v. INEC (supra). To this extent the Lower Court ought to have considered whether the order of attachment will proceed or be set aside.
There is no skepticism about the fact that the intervener’s application was interlocutory in nature. Another thing that need be borne in mind is that the primary duty of an intervener is to come into a suit at the behest of the court to protect his right in the property under consideration. If it pleases the court that the property belongs to the Intervener or the Judgment Creditor, it then rules either way.
It is however noteworthy that the default judgment granted earlier in the suit was not in respect of the properties but in relation to the reliefs claimed in the Judgment Creditor/Respondent’s statement of claim for various sums of money owed by the 2nd -9th Respondents for professional and consultancy services rendered by the Judgment Creditor/Respondent. The Intervener/Appellant only obeyed the order of the court to show cause why the properties should not be attached and/or why execution should not be levied against his properties. He was granted leave to intervene and protect his right. See TAIWO v. ADEGBORO [2011] 11 NWLR (PT. 1259) 562; DAUGHTERS OF DIVINE LOVE CONGREGATION & ORS v. UGWU [2013] LPELR-22896.
The Intervener/Appellant is a bona fide purchaser for value regarding the properties in dispute and his protection is guaranteed in law. The fraud or liability of his vendor cannot be visited on him. See MOHAMMED v. MOHAMMED [2011] LPELR-3729; OMOSANYA v. ANIFOWOSHE [1995] 4 FSC 94; ODWUKWE v. ADMINISTRATOR GENERAL [1978] 1 SC 25.
This court will not shut its eyes on the failure of the Lower Court to determine the merit or otherwise of the Intervener/Appellant’s application when it ordered that it be joined as intervener to determine the ownership of the properties in dispute. The power vested in this court in the Act allows the court to exercise jurisdiction on the hearing of the application.
Broadly speaking, Section 15 of the Court of Appeal Act 2010 confers general powers on this court to interfere in certain matter emanating from the Lower Court as if it is a matter before the Court of Appeal as court of first instance. See ETAJAFA v. OLOGBO [2007] 16 NWLR (PT. 1061) 554; TOLANI v. KWARA STATE JUDICIAL SERVICE COMMISSION [2009] LPELR-8375; ATOLAGBE v. SHARUN [1985] 4 SC (PT. 1) 250. In my view, it is pertinent to consider the application of the Intervener/Appellant dated 7th December, 2005 wherein it sought an order of the court deeming the Intervener as the owner of the properties in dispute. A careful analysis of the said application reveals the averments of the Intervener/Appellant of its ownership of the properties having executed the transfer instrument together with the Judgment Creditor/Respondent who was one of the representatives of the assignor of the properties in that transaction. For the purpose of clarity, I shall reproduce essential parts of the affidavit in support (pages 241-242 of the record).
“3. That the 2nd Defendant/Judgment Debtor sold its properties situate at 27/29 Park Lane Apapa, Lagos and 2/4 Freetown Road, off Park Lane, Apapa, Lagos both registered under Title No. MO/1265 of the Lands Registry Lagos to the Intervener/Applicant in April 2001.
4. That the Intervener/Applicant has since been in possession of the properties, exercising rights of ownership without let or hindrance from any quarters…
5. That the Plaintiff/Judgment Creditor participated actively in all aspects of the transaction in his capacity as Executive Director/Company Secretary of the 2nd Defendant/Judgment Debtor…” (Underlining mine).
At pages 110 -113 of the record is the first application filed by the Intervener/Appellant dated 20th Dec. 2004 wherein, it sought the order of the court to set aside the Order of execution of the judgment to sell the properties and for a stay of execution pending the determination of the application. In the affidavit in support of 13 paragraphs, it was averred by the deponent -Uzor Kalu that the Intervener/Appellant was approached and informed of the execution of the judgment debt against the immovable properties of the Appellant and an Order of Attachment to sell the same. The Deponent also averred that the Intervener/Appellant commenced perfection of its title in the said properties.
Therefore, I am inclined to believe that the Appellant was not aware of the initial suit of the Judgment Creditor against the Judgment Debtors until the granting of the Order of Attachment of the properties to satisfy the judgment delivered in the original suit. I hold this view because of the fact that the original suit was not instituted on a claim for title in the properties in dispute but on monetary claims of debts owed by the Judgment Debtors to the Judgment Creditor. It is noteworthy to point out that the original suit was commenced in 2002 while the 2nd Defendant/Judgment Debtor divested itself of the properties in 2001 by transferring same to the Appellant. This court cannot hold that the Appellant slept on its right and/or acquiesced when the suit which it was not a party to was pending. The Intervener/Appellant joined the suit subsequent to the order of the court to protect its right and establish its ownership of the properties. I have examined all the exhibits attached to the two applications above mentioned and I am of the firm believe that the transaction which led to the transfer of title in the properties between Ecotrade Limited and Nigerian Oil Mills Limited is valid, regular and vest title in same on the Intervener/Appellant.
It could be gleaned from the various minutes of meetings, resolution of directors and the Deed of Assignment contained in the Record that the properties in dispute were validly transferred to the Appellant (See pages 245 -256 of the Record). Whether a Deed of Assignment as an instrument of transfer of title in land is void if the consent of governor was not sought and obtained at the time of execution, is of no moment in this appeal. The consent could be obtained later but without it, the transaction remains in escrow. See. IRAGUNIMA v. R.S.H.P.D.A. [2003] 12 NLWR (pt. 834) 427; AWOJUGBAGBE LIGHT INDUSTRIES v. CHINUKWE [1995] 4 NWLR (PT.390) 379.
However, where there is a transfer of title in a registered land by a registered owner, it behooves the transferee to complete the registration as owner of the land transferred. Until such registration, the transferor remains the registered owner of the land on the register of title. See Section 28 (2) of the Registration of Titles Law, Chapter R4, Laws of Lagos State. The delay in procuring the registration as stated above could have been occasioned due to investigation and processing by the Registrar of title. Except the title is registered, it is an equitable holding. The Deed of Assignment (see pages 253 -256 of record) executed between Nigeria Oil Mill Ltd. and Ecotrade Ltd., which was eventually validly registered, transferred the title. From myriads of evidence attached by the Intervener/Appellant, it is crystal clear that he applied for perfection and registration of his title in the said properties the subject matter of this appeal before he was joined as an intervener at the trial court. Exhibits attached to the Affidavit in support of motion dated 20th December, 2004 (see pages 110 -113 of the record) and motion on notice dated 18th February, 2005 (see pages 138 -142) shows that machinery was set in motion for the perfection between 12th and 19th August, 2004.
In addition, the alteration by replacing a page of the Deed with a computer printed page as alleged by the Respondent on the Deed of Assignment was not fundamental and not one that could amount to significant change in its con and content or that could occasion a miscarriage of justice. A careful perusal of same (the original and the modified) shows that it has same content and executed by same parties.
Section 72 (1) of Registration of Titles Law provides:
“(1) The date of the receipt of each application for an entry to be made in the register shall be noted on the application, which shall be serially numbered, and, if the application is in order, it shall be deemed to have been received in numerical order.”
The essence of the registration and consent of governor is to guarantee the ownership and title of the land. Consent does not necessarily need to be obtained at the commencement of the transaction but it must be subsequently obtained to perfect the title. See AWOJUGBAGBE LIGHT INDUSTRIES v. CHINUKWE (supra); Sections 22 and 26 of Land Use Act, 1978. What the law states is that the date of the receipt for the registration shall be noted on the application. Therefore, this is taken as the date application for same was made. For the Registrar of Title to register the land without prejudicing interest of the parties, he must satisfy himself following a careful perusal of documents submitted for processing same that the transfer is genuine regardless. In his exercise of discretion to register or not, he must have considered the notice of caveat of the Respondent before the registration. Registration is not automatic; there are steps and procedures to follow before the Registrar guarantees the land. See ONAGORUWA v. AKINREMI [2001] 13 NWLR (PT. 729) 38.
There is presumption of regularity in the Deed of Assignment executed as well as the registration of title. The provision of the Evidence Act 2011 is clear on this. Section 168 (3) & (4) provides:
“3. When a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duty of his trustees to execute in order to perfect his title.
4. When a minute is produced purporting to be signed by the chairman of a company incorporated under the Companies and Allied Matters Act and purporting to be a record of proceeding at a meeting of the company or of its directors, it is presumed, until the contrary is shown, that such meeting was duly held and convened and that all proceeding at the meeting have been duly had, and that all appointments of directors, managers and liquidators are valid.”
The act of execution of the Deed of Assignment by the parties is a presumption that the sale is valid and regular. The covenants in the transfer instrument evidently convey the thoughts of the parties in the transaction. See IRP NIG. v. OVIAWE [1992] 5 NWLR (PT. 243) 572; ODUBEKO v. FOWLER [1993] 9 SCNJ 185; MARANRO v. SALAMI ADEBISI [2007] LPELR-4663. On this note, the Judgment Creditor/Respondent is estopped from denying the regularity and/or genuineness of the contents of the Deed of Assignment. The Respondent who sat on the Board of Directors meeting where the resolution to transfer the properties to Nigeria Oil Mills Ltd and also executed the Deed of Assignment cannot turn around to deny the valid sale of the properties. See Section 169 of Evidence Act 2011.
I find merit in the Intervener/Appellant’s application and I am of the view that title in the properties was validly transferred to the Appellant. Therefore, the Order of the Lower Court made on 3rd of December, 2004 granting leave to levy execution on the properties in dispute was wrongly granted.
Considering the age of the appeal which was filed in 2008, I shall invoke Section 15 of the Court of Appeal Act, 2010 to set aside the said order.
For the provisions of Section 15 of the Court of Appeal Act to apply, the following conditions which had already been settled in legion of authorities must exist, to wit (a) the Lower Court must have the legal power to adjudicate over the matter before the appellate court can entertain it; (b) the issue sought to be determined must be capable of being distilled from the grounds of appeal before the appellate court; (c) all relevant materials must be available before the Court for consideration; (d) the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented; and (e) the injustice or hardship that will follow if the case is remitted to the Lower Court must be clearly manifest. See EZEIGWE v. NWAWULU [2010] 4 NWLR (PT. 1183) 159 SC; OBI v. INEC [2007] 1 NWLR (PT. 1046) 465; AMAECHI v. INEC [2008] 5 NWLR (PT. 1080) 227; INAKOJU v. ADELEKE [2007] 4 NWLR (PT. 1025) 423; AGBAKOBA v. INEC [2008] 18 NWLR (PT. 1119) 489.
From the foregoing, I find this appeal meritorious; the appeal is allowed. The Ruling of Adebiyi, J. of High Court of Lagos State delivered on 30th November, 2007 is hereby set aside. I award the cost of (Fifty Thousand Naira) N50,000.00 in favour of the Intervener/Appellant.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading before now the lead judgment just delivered by my learned brother A. O. OBASEKI-ADEJUMO, J.C.A.
The sole issue adopted for the determination of the appeal has been adequately addressed in consonance with the relevant laws and authorities. I agree with the reasoning and conclusion reached therein.
I also hold that the appeal has merit and it is accordingly allowed.
I abide by the consequential orders made in the lead judgment including that of cost.
JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview in draft of the judgment just delivered by my learned brother Abimbola Osarugue Obaseki Adejumo, JCA.
I am in complete agreement with the reasoning and conclusion. I also abide by the consequential orders made.
Appearances
Charles OhajaFor Appellant
AND
Ugo Alionye with Olufemi OyelekeFor Respondent
