HEMBADOOM TORTYA v. WURUKUM VILLAGE MARKET WOMEN MULTI-PURPOSE CO-OPERATIVE SOCIETY LIMITED & ANOR.
(2013)LCN/6155(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2013
CA/J/377/2007
RATIO
APPEAL: A COURT CANNOT SIT ON APPEAL OVER ITS OWN JUDGMENT OR REVIEW THE JUDGMENT OF A COURT OF CO-ORDINATE JURISDICTION
It is settled law that a court cannot sit on appeal over its own judgment or review the judgment of a court of co-ordinate jurisdiction. See Akporue v. Okei (1973) 12 SC 137, Waghoreghor v. Agenghen (1974) 1 SC 1 and Koden v. Shidon (1998) 10 NWLR (pt. 571) 662 there are however instances where the court is permitted to exercise certain restricted jurisdiction to set aside its own judgment or the judgment of a court of co-ordinate jurisdiction. This includes:-
a. The judgment is entered in default of the defendant appearance or in default of pleadings.
b. The judgment was obtained by fraud.
c. The judgment breached the fundamental right of a party.
d. The judgment will work injustice on one of the parties.
See U.B.A. Plc v. Ajileye (1999) 13 NWLR (pt. 633) 166 and Okafor v. A.G. Anambra State (1991) 6 NWLR (pt.200) 659.PER JA’AFARU MIKA’ILU, J.C.A.
JUSTICES
JA’AFARU MIKA’LU Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
Between
HEMBADOOM TORTYA Appellant(s)
AND
1. WURUKUM VILLAGE MARKET WOMEN MULTI-PURPOSE CO-OPERATIVE SOCIETY LIMITED
2. REBECCA MBANENGEN AGUDO Respondent(s)
JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Makurdi High court of Justice delivered on the 23rd of June, 2006 in Suit No.MHC/117/2006.
The plaintiffs, now the respondents, had sued the appellant in suit No.MHC/117/2006 seeking for the following reliefs:-
a. “An order setting aside the judgment of this Hon. Court in suit No.MHC/62/2006 dated 04/05/2006.
b. An order restraining the defendant from further flouting the order of suspension imposed on her, or re-opening her stall on account of the judgment of this Honourable court in Suit No.MHC/62/2006 dated 04/05/2006.
c. General damages for defamation of the character of the plaintiff in the sum of N400,000 (four hundred thousand naira) only.
d. An other (order) of injunction restraining the defendant from further defamation of the plaintiffs.”
The appellant filed a preliminary objection challenging the jurisdiction of the trial court, which objection in ruling dated 23rd June, 2006 was dismissed. Dissatisfied, the appellant following leave granted by this court on the 2nd day of May, 2007 filed an appeal against the trial Court’s ruling.
Arising out of the notice and Grounds of appeal against the dismissal of the ruling dated 23rd day of June, 2006, the appellant has formulated one issue for determination. The issue is whether the trial court has jurisdiction in suit No.MHC/117/2006 to set aside the decision in suit No.MHC/62/2006 delivered on the 4th day of May, 2006. As for the respondent the issue is whether or not the trial court has jurisdiction to set aside its own judgment, or judgment of a court of coordinate jurisdiction, which is a nullity or was obtained by fraud. Thus the issue formulated by the appellant is the same as the issue formulated by the respondent though differently worded. Therefore considering the issue as formulated by the appellant in appellant’s brief of argument suffices in determining their appeal.
Thus the sole issue is whether the trial court has jurisdiction in suit No.MHC/117/2006 to set aside the decision in suit No.MHC/62/2006 delivered on the 4th day of May, 2006.
It has been conceded by the appellant’s counsel that any court of record has an inherent power to set aside its judgment or order which is a nullity. He has however conceded that a party seeking such relief must show clearly to the court his grounds for the relief that the previous case sought to be set aside was obtained by fraud or was a nullity. The averment of the appellant is that this is not the case in this instance. That the respondents did not place particulars before the court to show that the decision sought to be set aside is a nullity. It was averred that in this case no such particulars were placed before the Court to enable it form an opinion that Suit No.MHC/62/2006 was a nullity or was obtained by fraud, relying on the case of Auto Import, Export v. Adebayo & 2 Ors. (2002) 12 SC (pt.1) 58, 170. He maintained that the failure of the respondents to place such particulars before the court which are apparent to enable the court form an opinion is fatal. He has maintained that the court cannot go into trial of the case or voyage of discovery of the fraud or to determine whether the case is a nullity, for in doing that it will amount to the court sitting on appeal on the decision in suit No.MHC/62/2006 of High Court 5 Makurdi, which the trial court lacks the judicial competence to do relying on the case of Ndi & Anor. v. Savannah Bank Plc (2003) 1 FR 1 @ 72 where the Court held as follows:
“it is trite that no judge has the jurisdiction or the competence to set aside or to review the decision of another court of coordinate jurisdiction, for it would amount to sitting on appeal on that decision”
He has reiterated that the decision sought to be set aside by this suit No.MHC/117/2006 is the decision of the Makurdi High Court sitting in court 5. He relies on the statement of Pats Acholonu J.C.A. in M. F. Peter & Anor v. 4 WNLR 22 where he stated as follows:-
“The theory of Justice to which we adhere to rests a priori on the premise that there must be certainty and parties to legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same court degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in aspect of the same subject matters involving the same parties i.e. each relying on his whims and caprices, prejudices and sometime vaunting ego, makes nonsense or mockery of the law. The beauty of what I might describe as the romance of the law is that just as stare decisis exercises a restraining influence on our courts, so too do discipline in the courts of co-ordinate jurisdiction do not sit on each other attracts respect for the law.
To maintain discipline the court must perforce respect the decision of the court of equal jurisdiction in the subject matter involving the same parties. To do otherwise is to let loose wild geese.”
He has therefore submitted that the Trial Judge had no competence to make an order that is capable of rendering a subsisting order or judgment of a court of coordinate jurisdiction unenforceable.
He has also averred that a decision or judgment of a court of competent jurisdiction subsists until it is set aside by the court itself on ground of error or by a higher Court on appeal. That the judgment in Suit No.MHC/62/2006 is final and valid judgment and therefore cannot be set aside by same court except on appeal by appellate court. Thus in Babatunde v. Olatunji (2000), 210 @ 212, the court held as follows:-
“A judgment of a court of competent jurisdiction remains valid and binding, even where the person affected by it believes that it is partial or irregular until it is set aside by a court of competent jurisdiction. The procedure is simple. The party affected must appeal against the judgment.
He has further argued that even if there is a defect in the judgment of 4th May, 2006, the only way to challenge or seek remedy to the defect is to appeal against the judgment. He has relied on the case of Ogolo v. Ogolo (2006) WRN 92, 97 where the Court held as follows:-
“where the judgment is final, the court that enters it has no jurisdiction to set same aside having thereby become funtus officio, the only way to challenge it or remedy any defect therein is by appeal to a superior court.”
He has also relied on Akindipe v. C.O.P. Obade & Ors. (2000) 2 (part 11) SCNQR 895, 899 where the court as follows:-
“where an action is brought solely to obtain relief which the court has no power to grant the statement of claim will be struck out and the action be dismissed.”
He has added that to allow the trial court determine suit No.MHC/117/2007 will amount to revisiting the judgment and trial a second time. Thus the Court in Synergy Trust & Investment Limited v. The Hon. Minister of the Federal Capital Territory & Anor. (2007) 11 WRN 157, (6) held as follows:-
“it is elementary law that once a court gives a judgment in a matter, it becomes functus officio and cannot therefore revisit the judgment by giving a second one. There will be no end to litigation and courts of law not being football matches are not prepared for a return match or replay. An aggrieved party has a remedy of appeal”
He has concluded that it is settled practice that where there is a presumption of correctness in favour of a court’s judgment, unless and until that presumption is rebutted and the judgment is set aside it subsists and must be obeyed. It cannot for any reason under our law be ignored.
On the other hand the respondents have maintained that the lower Court had the jurisdiction to entertain the respondent’s application to ex debitio justitiae set aside its judgment, on the ground that it was obtained by fraud, and that even where the lower court had no jurisdiction to entertain the claim to set aside its judgment, it still had jurisdiction over the claim in defamation of character. He urges this Court to uphold the ruling of the lower Court and to dismiss this appeal as lacking in merit.
The respondents have argued that the issue of jurisdiction cannot be waived. That acquiescence does not counter jurisdiction relying on Kere v. Alba (2004) ALL FWLR (pt.221) 1477; 1509 -1511, H – G, that where the judgment of a court is a nullity, the court is not functus officio in an application to set it aside relying on Ayorinde v. Ayorinde (2003) FWLR (pt.169) 1169 A 1184, B. He has maintained that the Court can exercise jurisdiction to set aside its own judgment or the judgment of a court of coordinate jurisdiction where:-
i. The judgment is a default judgment
ii. The judgment was obtained by fraud.
iii. The judgment is a breach of fundamental (human) right of a party.
iv. The judgment will work injustice on one of the parties.
The respondents have correctly submitted that 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, relying on Skenconsult Ltd. v. Ukey (1981) 1 SC 6.
It is the submission of the respondents that the court can in such a situation set aside its own judgment ex debito justitiae in such a case, it is a matter of choice to proceed to set aside a judgment that is a nullity either by simple application to the Court that made it or to appeal against it, relying on LSDPC v. Adeyemi Bero (2005) ALL FWLR (pt.252) 486; 500; E-G, 503-504, Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 7 SCNJ, 365, Agiri v. Ogundele (2005) All FWLR (pt.250) 81 @ 102, B-F 105 D-G. Refer also to Integrated Builders Ltd. v. Domza Q Venture (Nig.) Ltd. (2005) All FWLR (pt.263) 780 @ 796, B- C.
It is the averment of the respondents counsel that in the case of Adesola v. Abidoye (1999) 10-12 SC @ 109-122 that Karibi-Whyte JSC stated as follows:-
“it is true that as an issue of fact a person is precluded from relying from and abandoning an issue already admitted. It is however a different consideration whether the fact so admitted amount (sic) to a conclusion of law. It is an elementary but cardinal principal of the exercise of jurisdiction that where the court lacks jurisdiction the parties cannot confer and vest jurisdiction on it. Accordingly the fact that the parties sought a case erroneously on the basis that the Court has jurisdiction when there was none… cannot estop a party from subsequently taking a contrary position. See Shitta Bey v. Attorney General for the Federation (1988) 10 NWLR (pt. 579) 392 SC. It follows from this principle that the jurisdiction cannot be acquired by consent of the parties or can it be enlarged by estoppels.”
The learned counsel has referred this court to pages 1-2 of the appellant’s brief where the appellant’s has conceded as follows:-
“we concede that any court of record has an inherent power to set aside its judgment or order which is a nullity.
Party seeking such relief must however show clearly to the court his grounds for the relief that the previous case sought to be set aside was obtained by fraud or a nullity.
…..the respondents did not place particulars before the court to show that the decision sought to be set aside is a nullity…
No particulars was placed before the court to enable it form an opinion that suit No.MHC/62/2006 was a nullity or was obtained by fraud….. Failure of the respondent to place such particulars before the court which are apparent to enable the court form an opinion is fatal”
The respondents’ counsel has maintained that apart from the above concession, the respondent had by their pleadings put enough materials before the lower court to warrant a hearing on the merit on the issue of jurisdiction and fraud in suit No.MHC/62/2006, relying on paragraphs 12, 13 and 15 (a) – (b) of the statement of claim at pages 5 – 6 of the record. He has added that apart from the judgment in Suit No.MHC/62/2006 sought to be set aside, there was also a claim for damages for slander included in Suit No.MHC/117/2006. That there was allegation of defamation of character of respondents against the appellant in paragraphs 6(e) – (g), 7, 8, 9, 10, 11, 14 and 15 (c) – (d) of the claim @ pages 4 – 6 of the record.
He has maintained that this cause of action is different from the issue of jurisdiction and fraud, and is joined to this suit because it arose out of the same chain of events between the parties. He has added that it would therefore have amounted to injustice for the lower court to have struck out the suit on the ground that the respondents were stopped from challenging Suit No.MHC/62/2006 before the trial Court or that the respondents could only appeal to a Higher Court.
He has argued that even if the claim as it relates to Suit No.MHC/62/2006 could be struck out, the cause of action in respect of slander would be saved or inure to the benefit of the respondents. That the appellant did not challenge the cause of action as regards the allegation of slander against her.
In the final conclusion the respondents have urged this Court to affirm the decision (ruling) of the trial Court that it had jurisdiction to entertain the suit seeking to set aside its previous judgment to determine whether the said judgment was obtained by fraud or was given without jurisdiction, to dismiss the appellants appeal and award costs to the plaintiffs/Respondents.
It is settled law that a court cannot sit on appeal over its own judgment or review the judgment of a court of co-ordinate jurisdiction. See Akporue v. Okei (1973) 12 SC 137, Waghoreghor v. Agenghen (1974) 1 SC 1 and Koden v. Shidon (1998) 10 NWLR (pt. 571) 662 there are however instances where the court is permitted to exercise certain restricted jurisdiction to set aside its own judgment or the judgment of a court of co-ordinate jurisdiction. This includes:-
a. The judgment is entered in default of the defendant appearance or in default of pleadings.
b. The judgment was obtained by fraud.
c. The judgment breached the fundamental right of a party.
d. The judgment will work injustice on one of the parties.
See U.B.A. Plc v. Ajileye (1999) 13 NWLR (pt. 633) 166 and Okafor v. A.G. Anambra State (1991) 6 NWLR (pt.200) 659.
In LSDPC v. Adeyemi-Bero (2005) All FWLR (pt. 252) 486 @ 503 this court per Salami, J.C.A. (as he then was) held inter alia that:-
“I agree with learned counsel for appellant that 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 @ 33..
Furthermore at paragraph H. of pages 503 – 504 his lordship added that
“In setting aside a void order or judgment it is irrelevant 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. The statement of lord Denning Mr. is still valid today as it was when it was first made. At page 1172 the erudite lord said that:-
“if any act is void then it is in law void. It is not only bad but incurably bad. There is no need to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay. It will collapse”
In Agiri v. Ogundele (2005) ALL FWLR (pt. 250) 81 @ 102 this court per Adekeye, J.C.A. (as he then was) stated thus:-
It is that when a judgment or order is null and void or obtained by fraud practiced on the court it is as if it was not given or made at all it can be set aside without much ado. It is settled that a High Court can entertain a claim to set aside a previous judgment of another high court of concurrent jurisdiction when such judgment is null and void or obtained by fraud practiced on the earlier court. Fraud must however be established in both cases of self and concurrent jurisdiction before the seemingly vexed order can be set aside.
See also Dana Impex Ltd. v. Aderotoye (2006) ALL FWLR (pt.308) 1338.
It is thus clear from the above authorities that a high court can entertain a claim for a declaration that a previous judgment of another court of concurrent jurisdiction be set aside if it is null and void or on the ground of misrepresentation and fraud practiced on the earlier court. See UBA v. Ajileye supra.
In the instant case, the respondents had by writ of summons applied to the lower Court to set aside the judgment of the court in suit No.MHC/62/2006 dated 04/05/2006. The appellant reacted by filling a notice of Preliminary Objection challenging the competence of the suit on ground of lack of jurisdiction. Counsel for both parties filed written address wherein they both argued strenuously for and against the hearing of the suit. In a well considered ruling delivered on 23/06/2006 by E. N. Kpojime J. his lordship concluded thus:-
“the respondents are alleging that the judgment in Suit No.MHC/62/2006 was obtained by fraud without jurisdiction. Whether they are able to prove this is yet to be seen. Suffice however to say that I have no right to prevent them from their assertion as being urged on me by the applicants. I cannot at this stage and in this application decide the issues raised in their claim. That is whether or not the judgment was obtained by fraud or given without jurisdiction”.
I entirely agree with the above finding of the learned trial judge as being the correct procedure to be adopted.
Given the earlier authorities cited in support of the stance that a high court can entertain an application to set aside its judgment or that of a court of concurrent jurisdiction where such judgment is obtained by fraud or misrepresentation. It follows that when such suit or application is brought it behoves the trial court concerned to hear the matter before deciding whether or not there was such fraud or misrepresentation or whether it has been proved in accordance with the law.
This is the position taken by the lower Court and I find no reason to fault the decision.
In conclusion, I hold that this appeal lacks merit and is hereby dismissed. The ruling of lower court delivered on 23/06/2006 is hereby upheld.
Ten Thousand Naira (N10, 000.00) cost is awarded against the appellant.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the lead judgment of my learned brother Ja’afaru Mika’ilu, J.C.A. just delivered. I completely agree with the reasoning and conclusion that the appeal lacks merit and ought to be dismissed. I dismiss same and abide by the consequential orders contained in the lead judgment, inclusive of cost.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have the opportunity of reading in draft the ruling just delivered by my learned brother Ja’afaru Mika’ilu J.C.A. I agree entirely with the reasoning and conclusion therein and I have nothing extra to add.
I too dismiss the appeal and I abide by the consequential order made therein including that of cost.
Appearances
R. A. Mom Esq.For Appellant
AND
T. D. Pepe Esq. with F. T. Kusugh Esq.For Respondent
