EZEONYE TIMOTHY CHINAEZITE v. JAMIYU IDOWU ADEYEMI & ORS
(2019)LCN/12966(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/AK/111/2014
RATIO
COURTS: FUNCTUS OFFICIO: WHEN IS A COURT FUNCTUS OFFICIO
The law is trite that when a trial Court has given judgment in a case on the merit, that Court is functus officio in relation to the judgment once it is pronounced. A party dissatisfied with the judgment can only bring proceedings on appeal against it.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUDGMENT: REMEDY OF A PERSON WHOSE JUDGMENT HAS BEEN PROCURED BY FRAUD
However, at common law and equity, a person against whom judgment had been procured by fraud is entitled to approach the Court by an action or motion to set aside the judgment. Such person must impeach the judgment by not merely alleging fraud but sufficiently giving particulars thereof that relate to matters which formed the grounds for setting the judgment aside.
The procedure is only available to the aggrieved party where actual execution of the judgment has not been carried out. But in a situation where actual execution had been carried out by the Court the only remedy available is to appeal against the judgment. See Zenith Bank Plc. v. John (2015) 7 NWLR (pt. 1458) 393; INEC v. Nnaji (2004) 16 NWLR (pt. 900) 473; Anatogu v. Iweka (1995) 8 NWLR (pt. 415) 547.PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES:
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
EZEONYE TIMOTHY CHINAEZITE – Appellant(s)
AND
1. JAMIYU IDOWU ADEYEMI
2. AKANDE RAPHAEL
(For themselves and on behalf of 80 other subscribers in defendant’s Investment Scheme)
3. FIRST BANK OF NIGERIA PLC – Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal stems from the Ruling of Hon. Justice C.E.T. Ajama of the High Court of Ondo State sitting at Akure Judicial Division delivered on the 18th March, 2014 declining jurisdiction to entertain the Appellants motion on notice dated 23rd May, 2013.
The action that culminated to this appeal was commenced by the 1st and 2nd Respondents at the Ondo State High Court of Justice sitting at Akure Judicial Division on a suit No: AK/211/2012. BY A WRIT OF Summons, under the undefended list, the 1st and 2nd Respondents for themselves and on behalf of 80 other subscribers claim against the Appellant together with 3rd and 4th Defendants/Respondents the following reliefs:
a. N33,925,000.00 (Thirty Three Million, Nine Hundred and Twenty Five Thousand Naira) being the total sum of money had and received by the defendants from the plaintiffs in the defendants investment scheme and which sum the defendants have refused and/or neglected to pay despite repeated demands.
b. Interest on the judgment sum against the defendant at the rate of 10% from
1
the date of judgment till final liquidation.
c. An order of this Honourable Court directing the defendants to pay the said sum in paragraph (a) above to the plaintiffs JAMIYU IDOWU ODEYEMI for himself and other plaintiffs.
The trial Court on the 5th July, 2012 granted an Order exparte to serve all the processes on the Defendants by substituted means at their last known address No. 86 Oyemekun Road, Akure Ondo State.
There after a judgment was entered for the plaintiffs against the Defendants.
The plaintiffs in a Garnishee proceedings to execute the judgment of the Court, obtained an Order Nisi dated 26th July, 2012 against the First Bank of Nigeria Plc. (the 5th Respondent). On the 8th of August, 2012 the Order Nisi became ABSOLUTE and the only available known Bank Account of the 2nd Defendant/Judgment debtor was attached in satisfaction of the Judgment sum.
The 2nd Defendant/Judgment debtor later brought a motion on notice dated and filed on the 23rd May, 2013 praying for the trial Court to set aside the entire proceedings including service of processes effected on him by substituted means and to order the plaintiffs/Judgment
2
creditors and Garnishee to payback the Judgment sum withdrawn from his Account with interest of 21% per annum.
The 1st and 2nd plaintiffs/Judgment creditors in reaction to the Motion filed a counter affidavit and a motion on notice dated 9th July, 2013 praying for dismissal of the 2nd Defendant/Judgment debtors motion on notice of 23rd May, 2013 for want of jurisdiction. After hearing the parties the trial Court struck out the motion on notice dated 23rd May, 2013 for lack of jurisdiction.
Dissatisfied with the decision of the trial Court, the 2nd Defendant/Judgment Debtor filed the instant notice of appeal dated 31st March, 2014 that consist of four (4) grounds of appeal and reliefs sought.
In line with the rules of this Court parties filed their respective Briefs of argument and reply brief. First the Appellants Brief of argument dated 1st July 2014 was filed on the 2nd July, 2014. The 1st and 2nd Respondents amended joint Brief of argument dated 30th December, 2016 was filed pursuant to a motion on notice dated 30th December, 2016 and filed on 24th January, 2017 praying for leave to raise fresh issues of law and
3
incorporated same in the Brief. The said amended brief served on the 7th March, 2018. The 5th Respondents Brief of argument date 4th February, 2015 was deemed properly filed and served on the 19th March, 2015. The Appellant there after filed reply Briefs on the Respondents. They are the Amended Appellants reply Brief to the 1st and 2nd Respondents Brief of argument dated 19th April, 2018 and the Appellants reply Brief to the 5th Respondents Brief of argument dated and filed on the 19th March, 2015.
It is instructive to note that the 3rd and 4th Respondents, as per record of the entire proceedings in this Court neither appeared nor filed any process in respect of this appeal.
On the 23rd January, 2019 when the appeal came up for hearing both parties identified their processes and adopted same as their respective arguments in this appeal.
The Appellant submitted the following issues for determination, to wit:
1. Whether a judge that gave judgment on merits be it under the undefended list or garnishee Order absolute becomes functus officio after delivery thereof and altogether lacks jurisdiction to set same
4
aside even when the reasons for seeking to have same set aside is that the judgment is a nullity owing to lack of service of the process on the Defendant and fraud, deceit, and concealment. (Ground one and two).
2. Whether albeit the fact that garnishee order absolute is a final Order, the Court that made it is by and large and in all circumstances becomes functus officio after delivery thereof and altogether lacks jurisdiction to set same aside even when in reaching same there was failure on it part to follow the mandatory statutory provision for vesting jurisdiction on the Court and equally when there was no proper service thereby denying the judgment debtor of fair hearing (Ground 3)
3. Whether because the Appellant has not paid the cost awarded against him in the action even when the payment thereof was not made a condition precedent to taking any further step is enough to make the Court decline jurisdiction to entertain a subsequent application of the Appellant dated and filed on 23rd May, 2013 more so when the Court heard the application of the other parties against which a yet to be paid cost is still hanging on. (Ground 4).
5
The Counsel for the 1st and 2nd Respondents on their behalf submitted the following singular issue for determination to wit:
Whether having regard to the circumstances, the lower Court was right in upholding the preliminary objection of the judgment creditors and striking out the application of the 2nd judgment debtor for lack of jurisdiction.
The 5th Respondent, through its Counsel Ekerete Udofot Esq, submitted two issues for determination, to wit:
1. Having made the Garnishee Order Absolute, whether the learned trial Judge was not right in declining jurisdiction by refusing to set same aside on ground that the Court was Funtus officio. (Ground 3).
2. Whether the Appellant while still in disobedience of the Order of the trial Court is entitled to a hearing of his application (ground 4).
The Learned Counsel for the 1st and 2nd Respondents also raised preliminary objections in his Brief. The objections are on the Brief history of facts as stated by the Appellant, Ground 4 of the grounds of appeal, reliefs sought, defective affidavit and abuse of Court process.
Parties canvassed arguments for and against the objections. On brief history of facts
6
in a given case on Appeal Court is only bound to consider the record of the trial Court and deduce the facts and history of the case from the processes filed and evidence adduced by the parties at the trial and not what a party incorporated in his brief of argument. Consequently, appellants facts and history of the case that are not rooted from the record of the trial Court and affidavit evidence thereof will not be considered by this Court to represent the facts and history of the case; and upon which a preliminary objection may be raised.
On the objection as to the competency of Ground 4 of the Appellants Grounds of appeal and issue 3 formulated there from, learned counsel for the Appellant in his reply brief to the 1st and 2nd Respondents Brief of Argument conceded that the Ground did not attack the ratio of the decision appealed against and thus applied to withdraw the said ground of appeal. Therefore, Ground 4 of the Appellants grounds of appeal is here by struck out for being incompetent.
Consequently, issue 3 of the Appellants issues for determination having been formulated from incompetent ground of appeal
7
is also struck out and all arguments canvassed by parties there in are here by discountenanced.
However, the remaining objections are in my view not preliminary and therefore will be considered later in this judgment. Having struck out Ground 4 and issue 3 of the Appellants issues for determination, I shall therefore determine this appeal on the two issues formulated by the Appellant, being the owner of the appeal.
The Appellants submissions are that his motion on notice of 23rd May, 2013 with the supporting affidavit and annextures was filed at the trial Court to set aside its ruling delivered on the 18th March, 2014 and the Garnishee Order Absolute on the grounds that non of the processes in that Court was served on him and that the entire proceedings was tainted with fraud, deceit and concealment. Though a Court become functus officio after a judgment determining the matter before it in its finality but that this situation is an exception to the general rule more especially the issue of non service. He cited and relied on the cases of Kalu Mark & Anr v. Gabriel Eke (2004) ALL FWLR (pt. 200) p. 1455 at 1475; LSDPC v. Adeyemo-Bero (2005) ALL FWLR (pt. 252) p. 486 at 503.
8
He argued that once an application is brought urging the Court to set aside a judgment or an order on the ground of being a nullity, no Court can claim to be functus officio.
That even similar Court of concurrent jurisdiction can set aside such judgment or order.
He urged this Court to hold on issue I that the lower Court was in error in declining jurisdiction to set aside its judgment on the grounds of fraud, deceit, and concealment and lack of service.
On issue 2, learned Appellants counsel also argued that there was no service of Order Nisi on him before the grant of the Order Absolute by the trial Court and that there was non compliance with Section 83(2) of the Sheriff and Civil Process Act. The Order Nisi was made Absolute between 11 12 days as against the 14 days provided by the Act.
He claimed to have referred the trial Court on various decided authorities to that respect and that the Order was a nullity but the trial Court ruled that it lacked jurisdiction to set it aside. He cited and relied on the case of Dingyadi v. INEC (2011) ALL FWLR (pt. 581) p. 1426 at p. 1457 and
9
submitted that failure to comply with the statutory procedure by the trial Court before making the Order Absolute is not a mere irregularity but a breach of rule of Court that rendered the Order a nullity.
He referred to S. 15 of the Court of Appeal Act and the case of Harka Air Services Nig. Ltd. V. Keazor (2011) ALL FWLR (pt. 591) p. 1402 and urged this Court to exercise its powers therein and grant his reliefs.
The 1st and 2nd Respondents in their response through their counsel, referred to the Blacks Law Dictionary, 9th Edition page 743 and the case of FBN v. TSA Industries Ltd. (2010) ALL FWLR (pt. 537) 633, on the meaning of functus officio.
He submitted that the judgment was obtained under the undefended list which is judgment on merit and can only be set aside on appeal. He contended that the judgment has determined and disposed off all rights of the parties and therefore the trial Court was functus officio and urged this Court to so hold. He referred to various decided cases in support of his contention.
On Garnishee Order Absolute, the learned counsel relied on the case of UBN Plc. V. Boney Marcus Ind. Ltd. (2005) ALL FWLR
10
(pt. 278) 1037 at 1047 and submitted that it is a final order and cannot be set aside except on appeal. He also relied on the cases of P. P. M. C. Ltd. V. Delphi Petroleum (2005) 8 NWLR (pt. 928) 458; Nitel Plc. V. ICIC (Directory Publishers Ltd.) (2009) 16 NWLR (pt. 1167) 356; UBA Plc. V. Ekanem (2010) 6 NWLR (pt. 1190) 207 and Ekiti State Government v. Ashaolu (2012) ALL FWLR (pt. 662) 1800.
He urged this Court to hold that the lower Courts decision that upheld the preliminary objection of the 1st and 2nd Respondents was justified in law.
Counsel also distinguished the authorities relied by the Appellant at page 9 11 of his brief that the authorities are inapplicable to the present case, the facts and circumstances are different, the authorities were not decided on the Order of Garnishee Absolute, the Order for substituted service on the appellant is still subsisting and there is no pending appeal against the Order in question.
He urged this Court to discountenance all the authorities cited in that respect and hold that they are in applicable and irrelevant to this case. The 5th Respondent, through its counsel Ekerete Udofot
11
Esq, in response to the Appellant, submitted on the part to which he was involved at the trial Court that is the Garnishee proceeding. He contended that contrary to the Appellants submission, the 5th Respondent was only obeying an order of the trial Court and that in the Garnishee proceedings Appellant was only a minal party. The proceeding was between the judgment creditors and Garnishee which is the 5th Respondent. He argued that after being served with Order Nisi, there was nothing to contend with and therefore Order Absolute was granted and the trial Court became functus officio.
He relied on the cases of DentonWest v. Muoma (2008) ALL FWLR (pt. 433) 1423; Babington Ashaye v. E. M. A. Gen. Ent. (Nig.) Ltd. (2010) ALL FWLR (pt. 537) 633; UBN Plc. V. Boney Marcus Ind. Ltd.(supra).
Counsel further argued that the Appellants allegations of fraud, deceit and concealment on the proceedings at the trial Court are allegations of crime which requires proof beyond reasonable doubt under the Evidence Act. He referred to page 776 of the Record of Appeal and submitted that Garnishee proceeding is distinct and the procedure to set aside an order
12
in Ordinary Civil proceedings is not applicable to Garnishee proceedings. He urged this Court to hold that the trial Court was right in holding that it had become functus officio.
On Section 15 of the Court of Appeal Act, the learned counsel contended that the provision of the Law allowed rehearing and not to hear a matter that was not heard by the trial Court. He relied on Mafimisebi v. Ehuwa (2007) ALL FWLR (pt. 355) 562 and submitted that the function of appellate Court is to limit itself to complains, challenges or attacks mounted against the judgment/ruling of the trial Court, also, he argued that the reliefs sought must be founded and related to the grounds of appeal which naturally flows from the decision of the trial Court.
That the instant appeal is on the ruling of the trial Court dated 18th March, 2014 and not on the judgment and Garnishee Order Absolute or the Appellants motion on notice dated 23rd May, 2013. Reliefs 3 and 4 are basically on the judgment and Garnishee Order Absolute on which no appeal was filed by the Appellant.
He urged this Court to hold the two reliefs incompetent and to strike them out. He also urged us to
13
dismiss this appeal as same in devoid of merit.
I have carefully gone through the record and briefs filed by both counsel, the two Appellants Reply Brief does not contain anything new but reargued the issues in the appeal.
It is obvious from the record and briefs of the counsel representing the parties to this appeal that the Appellant by his motion on notice dated 23rd May, 2013 sought the trial Court to set aside the judgment and Garnishee Order Absolute in Suit No. AK/211/2012 on the grounds stated therein. The 1st and 2nd Respondents in reaction to the application filed a motion on notice dated 9th July, 2013 challenging the jurisdiction of the trial Court to hear the Appellants motion dated 23rd May, 2013.
The judgment sought to be set aside by the Appellant was obtained under the undefended list and delivered by the trial Court on the 23rd May, 2012. The Garnishee Order Nisi was made Absolute on the 8th August, 2012 after the Garnishee First Bank of Nigeria Plc. has filed an affidavit showing cause. The affidavit was sworn by Ayodeji Olawole Ishola dated 3rd August, 2012. By that affidavit the appellant has current account
14
with balance of N34, 954, 072.96k while Account for Ojo Kehinde could not be ascertained and the Wealth Of Life International Investment Ltd has no account with the Garnishee.
The law is trite that when a trial Court has given judgment in a case on the merit, that Court is functus officio in relation to the judgment once it is pronounced. A party dissatisfied with the judgment can only bring proceedings on appeal against it. However, at common law and equity, a person against whom judgment had been procured by fraud is entitled to approach the Court by an action or motion to set aside the judgment. Such person must impeach the judgment by not merely alleging fraud but sufficiently giving particulars thereof that relate to matters which formed the grounds for setting the judgment aside.
The procedure is only available to the aggrieved party where actual execution of the judgment has not been carried out. But in a situation where actual execution had been carried out by the Court the only remedy available is to appeal against the judgment. See Zenith Bank Plc. v. John (2015) 7 NWLR (pt. 1458) 393; INEC v. Nnaji (2004) 16 NWLR (pt. 900) 473; Anatogu v. Iweka (1995) 8 NWLR (pt. 415) 547.
15
In the instant case, the Garnishee Order Absolute of 8th August, 2012 granted by the trial Court which was followed by actual execution (payment of judgement sum to the judgment creditors by the Garnishee) completely determined the matter before the trial Court and consequently rendered the trial Court functus officio. The trial Court rightly applied the principle in the case of UBN Plc. v. Boney Marcus Industry Limited (2005) 13 NWLR (pt. 943) 654. Per Akintan, JSC, at page 667 stated thus:
—-Once the Order Absolute is made, there would be nothing left before the Court in the matter. The Court has, at that stage, completely determined. The Court would be functus officio. There would then be nothing left to be determined by the court.
As rightly pointed out by the counsel to the 1st and 2nd Respondents, what Appellant ought to do, since execution was carried out, is to file a notice of appeal against the judgment and Order Absolute of the trial Court. I think it is the only remedy available to him to; challenge the judgment of the trial Court and the Garnishee Order Absolute made
16
therein.
Failure of the Appellant to file an appeal against the decision of the trial Court in Suit No. AK/211/2012, rendered the judgment and execution carried out inviolate. The trial Court, therefore, rightly declined jurisdiction over the Appellants motion on notice of 23rd May, 2013 for being functus officio.
That negatively answers the two issues formulated, against the appellant and in favour of the Respondents.
Consequently, the appeal is therefore unmeritorious and is hereby dismissed.
There shall be N10, 000. 00 (Ten Thousand Naira) costs in favour of each Respondents.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the advantage of reading before now the judgment just delivered by my learned brother: Mohammed A. Danjuma, JCA, in draft. His lordship dealt with the issues involved exhaustively and I have nothing useful to add. I entirely agree with the reasoning and conclusion marshaled therein that the appeal lacks merit and should be dismissed.
I shall also dismiss the appeal. Appeal dismissed. I also abide by the consequential orders made in the lead
17
judgment.
PATRICIA AJUMA MAHMOUD, J.C.A.: The draft judgment in this appeal was served on me before now. Having perused same, I am in complete agreement with the reasoning and conclusion arrived therein by my learned brother MOHAMMED A. DANJUM, JCA that this appeal lacks merit.
The facts of this case have been clearly and aptly set out in the lead judgment I adopt them as mine. This appeal was decided on the two issues raised by the appellant. I find however that the two issues are one and the same, that is whether a judge who makes a final order, in this case a garnishee order absolute becomes functus officio and lacks jurisdiction to set same aside in the face of failure to follow the statutory provisions that vest jurisdiction on the Court and failure of proper service on the judgment debtor. I would like to make a few comments for purposes of emphasis and to further support the lead judgment which has comprehensively considered all the issues.
In the case of UBN PLC V BONEY MARCUS IND. LTD & ORS (2005) 13 NWLR, PT 943, 654 the SC per AKINTAN, JSC held that once the garnishee order absolute is made,
18
there will be nothing left before the Court in the matter.
That the Court would be functus officio and there would be nothing left to be determined by it. See also the decision of this Court in the case of BARBEDOS VENTURES LTD V ZAMFARA STATE GOVT & ANOR (2017) LPELR – 42499. In the case of ZENITH BANK PLC V JOHN (SUPRA), the apex Court held that a garnishee order absolute means an executed judgment and a completed act. In the case of MAKUN & ORS V FUT MINNA & ORS (2011) 18 NWLR, PT 1278, 190 the apex Court held that a final judgment rendered by a Court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. In other words that a matter once judicially decided is finally decided. Idigbe JSC in the case of FADIORA & ANOR (IN RE SAMUEL) V GBADEBO & ANOR (1978) LPELR 1224 defined ‘finality’ of judgment very aptly and clearly when he held as follows:
“A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in
19
order to render it effective and capable of execution, and is absolute, complete and certain, and when it is not lawfully subject to subsequent decision, review or modification by the tribunal which pronounced it.”
See also AGBOGUNLERI V DEPO & ORS (2008) LPELR – 243 (SC).
With the postscript, I hereby adopt the lead judgment as mine, including all orders made therein including as to costs. Appeal is dismissed.
20
Appearances:
Ugo Udoji, Esq. For Appellant(s)
Fola Awonusi & Co. for the 1st-2nd Respondents.
Ekerete Udofot, Esq. for the 5th Respondent For Respondent(s)
Appearances
Ugo Udoji, Esq. For Appellant
AND
Fola Awonusi & Co. for the 1st-2nd Respondents.
Ekerete Udofot, Esq. for the 5th Respondent For Respondent
