LAWAL OLADAPO ADEBAYO v. MADAM AYISAT ADEBOLA OLAJOGUN (2016)

LAWAL OLADAPO ADEBAYO v. MADAM AYISAT ADEBOLA OLAJOGUN

(2016)LCN/8321(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of March, 2016

CA/I/428/2014

COURT: POWER OF THE COURT; WHETHER A JUDGE OR COURT HAD THE POWER TO REVERSE, VARY OR ALTER THE ORDER THE DECISION OF ANOTHER JUDGE OF COORDINATE JURISDICTION AND THE EXCEPTION TO THIS RULE

Now it is settled law that no Judge or Court had the power to reverse, vary or alter the order or decision of another Judge of coordinate jurisdiction except on issue of jurisdiction. In other words, a Court cannot sit on appeal over its own judgment or review the judgment of a Court of coordinate jurisdiction. SeeWimoey (Nig) Ltd v. Alhaji Balogun (1986) 3 NWLR (pt.28) p.324 at 3391; Sken Consult (Nig.) Ltd & Anor V. Ukey (1981) 1 S.C. p.6 at 39 and Adeyemi Bero v. Omotosho (2008) NWLR (pt.1111) p.576. However, there are circumstances where a Court is permitted to exercise its inherent jurisdiction by virtue of Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to set aside its own judgment or the judgment of another Court of coordinate jurisdiction. Those circumstances include;
(a) Where the judgment was entered in default of appearance of the Defendant or in default of pleadings.
(b) Where the judgment was obtained by fraud.
(c) Where the judgment breached the Fundamental Right of a party.
(d) Where the judgment will work injustice on one of the parties.
A Court is therefore competent and therefore has the jurisdiction to set aside its own judgment or that of another Court of coordinate jurisdiction in any of the above stated situations or instances. See U.B.A. Plc v. Ajileye (1999) 13 NWLR (pt 633) p.166 and LSDPC v. Adeyemi Bero (2005) All FWLR (pt. 252) p.485 at 503 per Salami, JCA (as he then was).
I wish to point out that the Court can only set aside its own judgment or that of another Court of coordinate jurisdiction if the judgment is not a final judgment or decision. This is so because, once a Court has pronounced upon a final judgment it has become functus officio. In such a situation, the Court or another Court of coordinate jurisdiction can not vary, review or set such judgment aside. It is therefore necessary here to point out that a judgment will be said to be final where the Court that decided it cannot legitimately re-open, review, vary or set it aside. Thus, the test for determining whether the decision or judgment of a Court is final is whether it is one that cannot be varied, re-opened or set aside by the Court that delivered it or any other Court of coordinate jurisdiction. per. HARUNA SIMON TSAMMANI, J.C.A.

COURT: THE IMPLICATION OF A JUDGEMENT OR DECISION THAT IS LIABLE TO BE RE-OPENED, REVIEWED OR SET ASIDE
Accordingly, where such judgment or decision is liable to be re-opened, reviewed or set aside, it is not a final judgment. See Onyeabuchi v. INEC (2002) 8 NWLR (pt.709) p.417.
It therefore follows that, any judgment entered in default of pleadings or appearance is not a final judgment since both parties were not heard on the merit of the case. Such judgment was obtained by failure of the Defendant to follow certain rules of procedure. Accordingly, where the Court has not pronounced a judgment on the merits or by consent, such judgment may be set aside by any Court in the judicial division where the judgment was obtained. See Bello v. INEC (2010) 8 NWLR (pt.1196) p.342. In the instant case, the learned trial Judge, Catherine Ogunsanya, J found that the Respondent on record who was Defendant at the trial Court, was not served with the Court processes and therefore did not file any pleadings nor put up any appearance. The Record of Appeal clearly support the findings of the Court below that the Respondent neither filed any pleading not put up any appearance. I therefore hold that such judgment entered by Okunsokan, J in default of pleadings or appearance, eminently qualified as a default judgment. It is settled law that a default judgment is one that can be set aside either by the Court that made it or another Court or Judge of coordinate jurisdiction, upon good reasons being shown. I also find that, contrary to the submission of learned counsel for the Appellant, the judgment delivered by Okunsokan, J on the 27/10/2009 is a default judgment and therefore liable to be set aside either by Okunsokan, J that delivered it or any other Court of coordinate jurisdiction. Now, it is not in dispute that Ogunsanya, J in his Ruling of 21st day of June, 2012 set aside the default judgment delivered by Okunsokan, J on the 27/10/2009. The reasons for the decision of Ogunsanya, J are as stated at page 228 of the Record of Appeal as follows:
“I hold that the Applicant was never served with the processes in the suit hence the Court had no jurisdiction to entertain the suit. The audi alteram partem rule is a fundamental principle of justice enshrined in the Constitution of the Federal Republic of Nigeria, 1999. The right to fair hearing under Section 36 thereof is sacrosanct and a Court is duty bound to observe same in its proceedings.
I feel safe to hold that in this case from the facts I have brought to the fore and my consideration of same, the Applicant did not get a fair hearing or better still got “no hearing” in this case and so is entitled to get a shot at defending this action. For this reason, I am disposed to granting the application in its entirety.” per. HARUNA SIMON TSAMMANI, J.C.A.

PRACTICE AND PROCEDURE: THE IMPORTANCE OF THE SERVICE OF PROCESS ON A PARTY TO A PROCEEDING

It is now settled law that, service of process on a party to a proceeding is crucial and fundamental. It is a condition precedent to the exercise of jurisdiction, failure of which would deprive the Court of the jurisdiction to hear and determine the matter:. In other words, service of any process where service is required, is a condition Precedent to the exercise of jurisdiction by the Court. Thus, where there is no service or there is a procedural defect in service, any proceeding conducted thereon will be a nullity ab initio. In the case of Oke v. Aiyedun (1986) 2 NWLR (pt.23) p.548, the Supreme Court referred to the case of Sken Consult (Nig.) Ltd v. Ukey (supra) to hold that, it is beyond question that failure to serve process where service is required, is a failure which goes to the root of proper procedure in litigation. See also Eimskip Ltd v. Exquisite Ind. (Nig.) Ltd (2003) 4 NWLR (Pt 809) p. 88. Also in the case of Kida v. Ogunmola (2006) 13 NWLR (pt. 997) p.377, (2006) LPELR 169 (SC) the supreme Court, per Musdapher, JSC (as he then was) held that:
“It is trite law after its issue, a writ of summons or any originating process must be properly served on the defendant. without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the Defendant of the claims against him, so that he may be aware of and be able to resist, if he desires to, that which is claimed against him. Where service or process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitiae to have the order set aside as a nullity… Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court of whose registry the Originating process was issued. See National Bank (Nig.) Ltd v. Guthrie (Nig) Ltd (1993) 4 SCNJ at 17; (1993) 3 NWLR (pt.284) 643.
From the above stated dicta of the Supreme, it should be understood that, it is essential that an Originating process, such as Writ of Summons be served on the Defendant. It therefore means that failure to serve the Originating process will deprive the Court of jurisdiction over the person to the action who has not been served. Such failure to serve also vitiates the entire proceedings and the Defendant would be entitled to have the judgment entered in the absence of such service, set aside. See A.C.B. Plc v. Losada (Nig.) Ltd (1995) 7 NWLR (pt.405) p.26; U.B.A. Plc v. Okonkwo (2004) 5 NWLR (pt.867) p.445: Uchendu v. Ogboni (1995) 5 NWLR (t. 603) p.337; Tsokwa Motors (Nig.) Ltd v. U.B.A. Plc (2008) 2 NWLR (Bt.-1071) p.347; Okoye v. C.P.M.B. Ltd (2008) 15 NWLR (pt.1110) p.335 and F.B.N. Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (pt.1216) p.247.
It therefore remains settled that, where as in the case at hand, the aggrieved Defendant (Respondent herein), complains of non-service of the Originating and other process on him, he is raising a fundamental issue or question which goes to the jurisdiction of the Court to determine the action.
Accordingly, where the defendant proves non-service on him, the whole proceedings becomes a nullity and the trial Court would have jurisdiction to set it aside. This is because, it is the service of the Originating process of the Court on the defendant that confers on the Court the competence and thus, jurisdiction to hear and determine the matter between the Plaintiff and the Defendant. That is why service of the Originating process is a condition precedent to the hearing of the suit. Thus, failure to serve the Originating process where service is required, will go to the root of the suit, thereby giving the Defendant the right to ex debito justitiae, have the entire proceedings and any judgment or order made against him, based on such proceeding in the absence of service on him, set aside for being a nullity. See also Olorunyolemi v. Akhagbe (2010) 8 NWLR (pt.1195) p.48; Mark v. Eke (2004) 1 NWLR (pt.855) p.54 and Mbadinuju v. Ezuka (1994) 8 NWLR (pt.364) p.5. per. HARUNA SIMON TSAMMANI, J.C.A.

PRACTICE AND PROCEDURE: WHAT AN AFFIDAVIT OF SERVICE MUST SET OUT

AN ORDER OF INTERLOCUTORY INJUNCTION; THE PURPOSE OF AN ORDER OF INTERLOCUTORY INJUNCTION AND THE FACTORS THE COURT WILL CONSIDER IN THE DETERMINATION OF WHETHER OR NOT TO GRANT AN ORDER OF INTERLOCUTORY INJUNCTION
Generally, an order of interlocutory injunction is granted in the course of the proceedings, and at any stage of the proceedings for the purpose of keeping the parties in status quo till the determination of the action. See Obeya Memorial Specialist Hospital v. AG for the Federation (1987) 3 NWLR (pt. 60) p. 325 and Kotoye v. C.B.N. (1989) 1 NWLR (pt.98) p. 419. In the determination of whether or not to grant an interlocutory injunction pending the trial of the substantive matter, the Court will consider several factors, such as:
(a) Whether the applicant has shown that there is a serious question to be tried;
(b) Whether the applicant has shown that the balance of convenience is on his side;
(c) Whether the applicant has shown that damages cannot be an adequate compensation for any damages or injury he may suffer, if at the end he succeeds.
(d) The applicant must also show that he is not guilty of any reprehensive conduct;
(e) Whether the applicant has given a satisfactory undertaking as to damages.
The over-riding consideration for the grant of the order of interlocutory injunction is the preservation of the res, since the law holds that the res should not be destroyed or annihilated before the Court enters judgment in the case, one way or the other. See Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (pt.162) p.265; 7-Up Bottling Co. Ltd. v. Abiola & Sons (Nig) Ltd. (1995) 3 NWLR (pt. 383) p. 257 and Akinpelu v. Adegbore (2008) 10 NWLR (pt, 1096) p. 531. See also Oba James Adeleke & Ors v. Nafiu Adewale Lawal & Ors (2013) LPELR-20090 (SC). Now, in granting the order of interlocutory injunction, the learned trial Judge held at page 229 of the Record of Appeal as follows:
“Let me add that granting an injunction would help preserve the res, so the Applicant can defend the action and res protected till final determination of the rights of the parties. This application therefore succeeds and hereby grant all the orders sought.” per. HARUNA SIMON TSAMMANI, J.C.A.

JUSTICES:

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

LAWAL OLADAPO ADEBAYO
(Substituted for Alhaji Folarin) – Appellant(s)

AND

MADAM AYISAT ADEBOLA OLAJOGUN – Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Ogun State High Court, Ota Judicial Division, delivered by Catherine Ogunsanya, J on the 21st day of June, 2012. By the said Ruling, the learned trial Judge set aside the judgment of the same Court delivered on the 27/10/2009 by T. A. Okunsokan, J.

Before the Ogun State High Court, one Mr. Jeremiah Oludamilare Oke took out a Writ of Summons and Statement of Claim seeking for sundry reliefs as contained at Paragraph 14 of the Statement of Claim filed on the 16/7/2009. The said Statement of Claim was subsequently amended by order of Court. It was filed on the 27/10/2008. By the Amended statement of claim, the plaintiff/Appellant claimed as follows:
“(a) Declaration that the claimant is the owner by purchase and is entitled to the statutory Right of Occupancy of all parcel of Land measuring 1,39.586sq. Mts and known as Plot 7 and 10 on Alhaji Azeez Ajani Bello Family Layout situate, lying and being at Oke Aro/Akute Road, Baale Akinosi Village, Akinbo in Ifo Local Government Area of Ogun State and covered by

Certificate of Occupancy Registered as No.40 in Volume 659 of the Certificate of Occupancy of the land Registry at Abeokuta.
(b) The sum of N1 Million Naira as special and General Damages for trespass committed by the Defendant to the said parcel of land when they invaded Plot 10 of the land vit-et-armies, broke down the fence and started the construction of a building thereon.
(c) Special Damage:
(i) Cost of 100 bags of cement at N1,400.00 per bag – N140,000.00
(ii) 3 Loads of Dagboh at per load 5,000 – N15,000.00
(iii) 7 Loads of Sharp Sand at N7,000.00 per load – N49,000.00
(iv) 2 tons of Iron Rods with transportation – N252,500.00
Sum – N456,500.00
General Damages- N543,500.00
One Million Naira only N1,000,00.00
(d) Perpetual Injunction
An order of perpetual Injunction Restraining the Defendant, their Agents, Thugs, servants, privies or howsoever (sic) called claiming through or from them, from committing any further acts of trespass on the said parcel of land belonging to the claimant, either by constructing building, excavating, selling or doing anything inimical to the interest of the Claimant in the

parcel of land contained in claimants Certificate of Occupancy as No.40 at page 40 in Volume 659 of the Certificate of Occupancy of the land Registry at Abeokuta.”

The Statement Claim was accompanied by List of Witnesses and their Written Statements on Oath as required by the High Court (Civil procedure) Rules, 2008 that came into existence. List of Documents to be relied upon at the trial were equally frontloaded. After a series of adjournments, the Plaintiffs/Appellants applied that the case be set down for hearing pursuant to Orders 10 Rule 5 and 20 Rule 6 of the Ogun State High Court (Civil Procedure) Rules, 2008. The application was duly granted on the 31/3/2009. See pages 203 – 204 of the Record of Appeal. The matter was accordingly set down for hearing in default of pleadings and appearance by the Defendant/Respondent. The Plaintiff/Appellant thereafter called two witnesses who adopted their written depositions on oath, and also tendered some documents. Learned Counsel for the Plaintiff/Appellant then addressed the Court, and in a judgment delivered on the 27th day of October, 2009, the learned trial Judge gave judgment in favour of the

Plaintiff/Appellant and granted the reliefs as prayed in the Statement of Claim.

On the 9th day of September, 2011, the Defendant/Respondent filed a Motion on Notice seeking the following reliefs:
1. AN order of this Honourable Court extending time within which the Applicant may apply for the setting aside of the judgment entered on 27/10/2009.
2. An order of this Honourable Court setting aside the judgment of this Honourable Court entered in this suit against the Defendants on 27/10/2009.
3. An Order of this Honourable Court setting aside the execution of judgment in this suit.
4. An Order of Interlocutory Injunction restraining the Claimant, his agents, servants and privies from trespassing on or in any way tampering with the land at Ifesowapo Area along Jolasco Bus Stop, Osolo Town, adjacent Olajumoke Town via Akute, Ifo Local Government Area of Ogun State, the land in dispute .
5. And for such further or orders as this Honourable Court may deem fit to make in the circumstances of this suit.
GROUND FOR APPLICATION
1. Non-service of Court processes on the Defendant or Applicant.
2. Lack of fair hearing for the Defendant

or Applicant.
3. Lack of jurisdiction by the Court to hear the suit.

The Motion was supported by an Affidavit of 37 Paragraphs deposed to by the Defendant/Respondent, and a Written Address: Annexed to the Affidavit were some hearing notices, said to have been served on the Respondent. In opposition to the application, the Appellant who was the judgment creditor, filed a written addressed on points of law only. In a Ruling delivered on the 21st day of June, 2012, the learned trial Judge acceded to the application of the Judgment Debtor, now Respondent on record and set aside the judgment delivered on the 27/10/2009 on the ground that the said Respondent was never served with the Court processes and therefore the Court had no jurisdiction to hear and determine the suit against him. Being aggrieved by that decision, the Appellant has filed this appeal.

The Notice of Appeal which is at pages 241 – 245 of the Record of Appeal was dated and filed the 4/6/2014 pursuant to leave of this Court granted on the 02/6/2014. It consists of Seven (7) Grounds of Appeal. In compliance with the Rules of this Court, the Appellant filed and

served Appellant’s Brief of Arguments. Same was dated the 08/9/14 and filed on the 17/9/14; and from the seven (7) Grounds of Appeal, the Appellant distilled Four (4) issues for determination as follows:
1. Whether the learned trial Judge lacked jurisdiction to set aside the final judgment of a Court of coordinate jurisdiction on the ground of non-service of Court on the Respondent when the issue of service had already being (sic) determined making her funtus officio?
2. Whether the learned trial Judge improperly exercised her discretion when she set aside the final judgment of Okunsokan, J delivered on 27th June, 2012 and thereby occasioned a miscarriage of justice on the Appellant?.
3. Whether the Court below erred in Law to have granted an order of Interlocutory Injunction in favour of the Respondent in the circumstances of this case?
4. Whether the evidence of service of the Court processes on the Respondent in the proceedings leading to the judgment of Okunsokan, J. on 27th October, 2009 was credible and sufficient to prove that the Respondent was served and given an opportunity to defend the suit but chose not to do so and whether the

learned trial Judge went outside the facts presented by the Respondent in her application to arrive at the decision that the Respondent was not served?

It is necessary for me to point out that, the Respondent herein was duly served but filed no Brief of Arguments. This appeal was therefore heard on the Appellant’s Brief of Arguments alone, pursuant to Order 18 Rule 9(4) of the Court of Appeal Rules, 2011. Furthermore, having carefully read the Record of Appeal, and particularly having considered the decision leading to this appeal, I am of the view that one issue formulated will be sufficient to resolve this appeal. That is:
Whether the learned trial Judge was right when he set aside the judgment delivered by Okunsokan, J on the 27th day of October, 2009?

In the resolution of the lone issue distilled by me for determination, I shall endeavor to bring out the aspects of the Appellant’s arguments as I find necessary to the determination of the issue at hand. I do so, considering that the arguments proffered by learned counsel on the four issues he formulated, appear to me to be repetitive

Now arguing the appeal, learned counsel for the

Appellant cited the cases of Aghenghen & 2 Ors. v. Waghoreghor (2002) FWLR p.84 at 200 and Emordi v. Kwentoh (1996) 2 NWLR (Pt.433) p.656 to submit that, it is trite law that a Court of concurrent jurisdiction is not competent to sit on appeal or review the judgment of another Court of coordinate jurisdiction. That, in the instant case, Okunsokan, J delivered a final judgment on the 27/10/09 and made specific pronouncement on the issue of service of the Originating processes and other Court processes on the Respondent. That the learned trial Judge (C. Ogunsanya, J), however set aside that judgment on the ground that the Respondent was not served the said processes. That Okunsokan, J had found in the judgment delivered on the 27/10/09 that service was effected on the Respondent. That by so finding, the Court below had become functus officio, and therefore incapable of making a contrary order that there was no service of the Court processes on the Respondent. The cases of Balogun v. Adejobi (1995) 2 NWLR (pt.376) p.133 and Mohammed v. Hassan (1998) 11 -12 S;C, 135 were cited in support. The cases of Oyefolu v. Durosinmi (2001) 7 S,C, p.1 at 20 and

Akpofure & Ors. v. Okei & Ors (1979) 12 S.C. p.137 were further cited to submit that, Ogunsanya, J lacked the powers to sit on appeal or review or make fresh enquiry to ascertain the question of service on the Respondent.

It was further submitted by learned counsel for the Appellant that Affidavit of service by Court bailiff is to prove that there has been service of the Court processes, and therefore prima facie evidence of service even in the face of denials by the party served. The case of Integrated Builders v. Doruzag Vent (2005) 2 NWLR (pt.909) p.97 was then cited to contend that, in the instant case there were several Affidavits of service deposed to by the Court bailiff as shown by pages 53 – 58 of the Record of Appeal, and referred to by the learned trial Judge at page 226 of the Records. Learned counsel for the Appellant then submitted that there was evidence of service of the processes on the Respondent as disclosed by the affidavits of service sworn to by the Court bailiff incompliance with Order 7 Rule 13 of the Ogun State High Court (Civil Procedure) Rules.
Furthermore, that Okunsokan, J made a specific finding of fact that

the Respondent was served but Ogunsanya, J chose to ignore those findings, and chose to believe and rely on the affidavit in support of the Respondent’s Motion. That reference by the learned trial Judge to the averment in Paragraph 12 of the Amended Statement of Claim was inappropriate, as that issue did not arise in the application before the Court.

Learned counsel for the Appellant further submitted that, the conclusion of the Court below that the Respondent was not served rested on speculation as the learned trial Judge did not confine himself to the evidence before him. The cases of Ogundele V. Agiri (2009) 12 S.C. (pt.1) p.135; Mozie & 6 Ors v. Mbamalu & 2 Ors (2006) 7 S.C. (Pt.2) p.15; Enekebe. v. Enekebe (1954) 1 All N.L.R. p,95 and Ogundimu v. Kasumu (2006) All FWLR (Pt.326) p.207 were then cited to submit that, where it is shown that the trial Court acted under a misapprehension of fact in that it either gave weight to irrelevant matters or omitted to take into account matters that are relevant, the discretion exercised by the trial Court will be impeached.

Learned counsel for the Appellant went on to submit that, the principles to

be considered in deciding whether or not to set aside a judgment obtained in the absence of pleadings of a Defendant or in the absence of such a Defendant, have been stated by the Supreme Court in Williams v. Hope Rising (1982) 1 – 2 S.C. p.145, as follows:
(a) The reasons for the Applicant’s failure to appear at the trial in which judgment was given against him must be sufficient to excuse his absence. .
(b) Whether there has been undue delay in making the application to set aside the judgment as to prejudice the party in whose favour the judgment was entered.
(c) Whether the party in whose favour the judgment was entered would be prejudiced or embarrassed upon an order for rehearing of the suit being made, such as to render such course inequitable.
(d) Whether the Applicant’s case is manifestly unsupportable.
(e) Whether the Applicant’s conduct throughout the proceedings, i.e. from the service of the writ upon him to the date of judgment has been such as to make his application worthy of , sympathetic consideration.

The case of S and D Construction Co. Ltd v. Ayoku & Anor (2011) 6 – 7 9.C. (pt;2) p.101 was cited to submit

that, the above stated conditions ought to be resolved in favour of the Applicant before the judgment can be set aside. That in the instant case, the only ground relied upon by the learned trial Judge in setting aside the judgment is that the Respondent was not served. That, Okunsokan, J had found at page 62 of the Records that the Respondent had been served, and that the Court below become functus officio on the issue of service, which could only be set aside or reviewed on appeal but not in a proceeding to set same aside. Several cases, such as Ebba v. Ogodo (2000) FWLR (pt.27) p.2094; Balogun v. Adejobi (1995) 2 NWLR (pt.376) p.131 etc were cited in support. That, in setting aside the judgment of Okunsokan, J delivered on the 27/10/09, the learned trial Judge completely ignored the principles set down by the Supreme Court in the case ofWilliams v. Hope Rising (supra), and thus occasioned injustice to the Appellant. We were accordingly urged to resolve this issue in favour of the Appellant.

Now it is settled law that no Judge or Court had the power to reverse, vary or alter the order or decision of another Judge of coordinate jurisdiction except on

issue of jurisdiction. In other words, a Court cannot sit on appeal over its own judgment or review the judgment of a Court of coordinate jurisdiction. SeeWimoey (Nig) Ltd v. Alhaji Balogun (1986) 3 NWLR (pt.28) p.324 at 3391; Sken Consult (Nig.) Ltd & Anor V. Ukey (1981) 1 S.C. p.6 at 39 and Adeyemi Bero v. Omotosho (2008) NWLR (pt.1111) p.576. However, there are circumstances where a Court is permitted to exercise its inherent jurisdiction by virtue of Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to set aside its own judgment or the judgment of another Court of coordinate jurisdiction. Those circumstances include;
(a) Where the judgment was entered in default of appearance of the Defendant or in default of pleadings.
(b) Where the judgment was obtained by fraud.
(c) Where the judgment breached the Fundamental Right of a party.
(d) Where the judgment will work injustice on one of the parties.
A Court is therefore competent and therefore has the jurisdiction to set aside its own judgment or that of another Court of coordinate jurisdiction in any of the above stated situations or

instances. See U.B.A. Plc v. Ajileye (1999) 13 NWLR (pt 633) p.166 and LSDPC v. Adeyemi Bero (2005) All FWLR (pt. 252) p.485 at 503 per Salami, JCA (as he then was).
I wish to point out that the Court can only set aside its own judgment or that of another Court of coordinate jurisdiction if the judgment is not a final judgment or decision. This is so because, once a Court has pronounced upon a final judgment it has become functus officio. In such a situation, the Court or another Court of coordinate jurisdiction can not vary, review or set such judgment aside. It is therefore necessary here to point out that a judgment will be said to be final where the Court that decided it cannot legitimately re-open, review, vary or set it aside. Thus, the test for determining whether the decision or judgment of a Court is final is whether it is one that cannot be varied, re-opened or set aside by the Court that delivered it or any other Court of coordinate jurisdiction.
Accordingly, where such judgment or decision is liable to be re-opened, reviewed or set aside, it is not a final judgment. See Onyeabuchi v. INEC (2002) 8 NWLR (pt.709) p.417.
It therefore

follows that, any judgment entered in default of pleadings or appearance is not a final judgment since both parties were not heard on the merit of the case. Such judgment was obtained by failure of the Defendant to follow certain rules of procedure. Accordingly, where the Court has not pronounced a judgment on the merits or by consent, such judgment may be set aside by any Court in the judicial division where the judgment was obtained. See Bello v. INEC (2010) 8 NWLR (pt.1196) p.342. In the instant case, the learned trial Judge, Catherine Ogunsanya, J found that the Respondent on record who was Defendant at the trial Court, was not served with the Court processes and therefore did not file any pleadings nor put up any appearance. The Record of Appeal clearly support the findings of the Court below that the Respondent neither filed any pleading not put up any appearance. I therefore hold that such judgment entered by Okunsokan, J in default of pleadings or appearance, eminently qualified as a default judgment. It is settled law that a default judgment is one that can be set aside either by the Court that made it or another Court or Judge of coordinate

jurisdiction, upon good reasons being shown. I also find that, contrary to the submission of learned counsel for the Appellant, the judgment delivered by Okunsokan, J on the 27/10/2009 is a default judgment and therefore liable to be set aside either by Okunsokan, J that delivered it or any other Court of coordinate jurisdiction.

Now, it is not in dispute that Ogunsanya, J in his Ruling of 21st day of June, 2012 set aside the default judgment delivered by Okunsokan, J on the 27/10/2009. The reasons for the decision of Ogunsanya, J are as stated at page 228 of the Record of Appeal as follows:
“I hold that the Applicant was never served with the processes in the suit hence the Court had no jurisdiction to entertain the suit. The audi alteram partem rule is a fundamental principle of justice enshrined in the Constitution of the Federal Republic of Nigeria, 1999. The right to fair hearing under Section 36 thereof is sacrosanct and a Court is duty bound to observe same in its proceedings.
I feel safe to hold that in this case from the facts I have brought to the fore and my consideration of same, the Applicant did not get a fair hearing or better

still got “no hearing” in this case and so is entitled to get a shot at defending this action. For this reason, I am disposed to granting the application in its entirety.”

It is obvious therefore, that the learned trial Judge set aside the judgment delivered on the 27/10/2009 on the ground that the respondent (as Defendant) was never served the processes and was therefore denied a hearing.

the root of proper procedure in litigation. See also Eimskip Ltd v. Exquisite Ind. (Nig.) Ltd (2003) 4 NWLR (Pt 809) p. 88. Also in the case of Kida v. Ogunmola (2006) 13 NWLR (pt. 997) p.377, (2006) LPELR 169 (SC) the supreme Court, per Musdapher, JSC (as he then was) held that:
“It is trite law after its issue, a writ of summons or any originating process must be properly served on the defendant. without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the Defendant of the claims against him, so that he may be aware of and be able to resist, if he desires to, that which is claimed against him. Where service or process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitiae to have the order set aside as a nullity… Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court of whose registry the Originating process was issued. See National Bank

(Nig.) Ltd v. Guthrie (Nig) Ltd (1993) 4 SCNJ at 17; (1993) 3 NWLR (pt.284) 643.
From the above stated dicta of the Supreme, it should be understood that, it is essential that an Originating process, such as Writ of Summons be served on the Defendant. It therefore means that failure to serve the Originating process will deprive the Court of jurisdiction over the person to the action who has not been served. Such failure to serve also vitiates the entire proceedings and the Defendant would be entitled to have the judgment entered in the absence of such service, set aside. See A.C.B. Plc v. Losada (Nig.) Ltd (1995) 7 NWLR (pt.405) p.26; U.B.A. Plc v. Okonkwo (2004) 5 NWLR (pt.867) p.445: Uchendu v. Ogboni (1995) 5 NWLR (t. 603) p.337; Tsokwa Motors (Nig.) Ltd v. U.B.A. Plc (2008) 2 NWLR (Bt.-1071) p.347; Okoye v. C.P.M.B. Ltd (2008) 15 NWLR (pt.1110) p.335 and F.B.N. Plc v. T.S.A. Ind. Ltd (2010) 15 NWLR (pt.1216) p.247.
It therefore remains settled that, where as in the case at hand, the aggrieved Defendant (Respondent herein), complains of non-service of the Originating and other process on him, he is raising a fundamental issue or question

which goes to the jurisdiction of the Court to determine the action.
Accordingly, where the defendant proves non-service on him, the whole proceedings becomes a nullity and the trial Court would have jurisdiction to set it aside. This is because, it is the service of the Originating process of the Court on the defendant that confers on the Court the competence and thus, jurisdiction to hear and determine the matter between the Plaintiff and the Defendant. That is why service of the Originating process is a condition precedent to the hearing of the suit. Thus, failure to serve the Originating process where service is required, will go to the root of the suit, thereby giving the Defendant the right to ex debito justitiae, have the entire proceedings and any judgment or order made against him, based on such proceeding in the absence of service on him, set aside for being a nullity. See also Olorunyolemi v. Akhagbe (2010) 8 NWLR (pt.1195) p.48; Mark v. Eke (2004) 1 NWLR (pt.855) p.54 and Mbadinuju v. Ezuka (1994) 8 NWLR (pt.364) p.5.

In the instant case, the Respondent as the Defendant/Applicant in the Court below, supported his application to set aside

the judgment delivered on the 27/10/2009, by an affidavit of 37 Paragraphs. Specifically, it was deposed in Paragraphs 2,3,4,5, 6, 7 and 8 as follows:
“2 That I became aware of the above suit when I was prevented from going to my property at Ifesowapo Area along Jolasco Bustop (sic), Osolo village on Oyekan family land via Akute in Ifo Local Government Area of Ogun State and I was reliably told that there was a subsisting judgment on my property.
3. That I was surprised at this judgment as I was not aware of the existence of this suit and judgment and I was never served with any Court processes on the same.
4. I obtained certified true copies of the record of proceedings and Affidavit of service sworn to in this Suit purporting to prove service of the Court processes in the above Suit,
(i) Proof of service dated 22nd January 2009 marked Exhibit AA1.
(ii) Proof of service dated 27th April 2009 marked Exhibit AA2.
(iii) Proof of service dated 15th May 2009 marked Exhibit M3:
(iv) Proof of service dated 4th June 2009 marked Exhibit AA4
(v) Proof of service dated 17th June 2009 marked Exhibit AA5.
(vi) Proof of

service dated 6th July 2009 marked Exhibit 446.
(vii) Enrolment of Order dated 24th day of November, 2008 marked Exhibit AA7.
(viii) Judgment delivered on the 24th day of October, 2009 marked Exhibit AA8.
5. That I was not served with the Court processes in this Suit thereby denying me of the opportunity to appear and be heard in this Suit.
6. That the Enrolment of Order dated 24th day of November 2008 stipulates that service should be by pasting but no evidence that the service was pasted on the wall/fence.
7. That there was no picture of the service of the processes taken.
8. That all hearing notices were neither pasted as there was no evidence of the picture of the pasting of the hearing notice.”

Despite all the above depositions of the Respondent, the Appellant did not file any counter-affidavit. Rather, he chose to oppose the application on points of law alone, while ignoring those pungent depositions of the Respondent. It is trite law that facts deposed to in an affidavit and which affidavit are not challenged by way of Counter-Affidavit are deemed established except where the deposed facts are incredible considering

the usual course of human conduct. In other words, where there is no counter affidavit to rebut the facts in a supporting affidavit to an application, such depositions in the affidavit are deemed admitted by the other party. In such a circumstance, as in the instant case, where there are very positive and clear depositions in the affidavit in support of the motion seeking to set aside the judgment, and which facts were not challenged by the Appellant, who had the opportunity to do so, the learned trial Judge was right in accepting and acting upon same in arriving at the decision that the Respondent was not served the processes. See Olori Motors & Co. Ltd v. U.B.N. Ltd. (1998) 6 NWLR (pt. 554) p.493 at 505; Long-John v. Black (1996) 5 NWLR (pt. 555) p.524 and Olorunfemi v. Asho (2000) 12 NWLR (pt.643) p. 143. Thus in Badejo v. Federal Ministry of Education (1996) 8 NWLR (pt. 464) p. 15 at 42 Paragraphs E – F, the Supreme Court held that:
“It is an elementary principle of law that facts contained in an affidavit form part of documentary evidence before the Court. Where an affidavit is filed deposing to certain facts, and the other party does not file

a counter affidavit or a reply to the counter affidavit, the facts deposed to in the affidavit would be deemed unchallenged and undisputed. In the instant case, those Paragraphs which disclosed that the interview for admission into Federal Government Colleges had already taken place on 8th October, 1988 were not denied They are therefore deemed admitted.”

In the instant case, the Respondent had deposed clearly to facts showing that he was never served the Court processes and therefore was not aware of the existence of the Appellant’s suit against him. The Appellant failed or neglected to file any Counter-Affidavit, so those facts are deemed admitted by him. In any case, I have carefully perused the entire record of appeal and particularly the Affidavits of service attached to the Respondent’s motion to set aside the judgment of 27th October, 2009.
Having thus perused, I find from the records that the suit was instituted at the lower Court vide writ of summons dated and filed on the 16th day of July, 2007. The Statement of Claim was also filed on the 16/7/2007. The record does not show that the Respondent was served the said writ of summons

and statement of claim. The Affidavits of service annexed to the motion show that the Court started serving Hearing Notice on the Respondent on the 27/4/2009. Indeed, all the affidavits of service attached to the affidavit did not show that the Respondent was ever served with any of the Originating Court process such as Writ of Summons, Statement of Claim, Motions to substitute the Plaintiff, Motion to amend the Statement of Claim, etc. The affidavits of service only show that hearing notices were served on the Respondent.

It is settled law and practice of the Courts that, an affidavit of service deposed to by the Court bailiff or the person effecting such service must set out the facts of such service, the place, mode and date of service. It must also describe the processes or documents served. In the instant case, none of the documents exhibited as evidence of service indicated that the writ of summons or statement of claim, which are the originating processes were ever served on the Respondent, either by pasting or by any other mode. It therefore remained proved and therefore established that the Respondent was never served the Originating Processes.

The learned trial Judge was therefore right in holding that the Respondent was denied his fundamental right to be heard and was never heard. He was also right when he exercised his inherent powers to set aside the judgment delivered by Okunsokan, J on the 27/10/2009. It has been determined in this judgment that the judgment of 27/10/2009 was a default judgment, and not a final judgment. Being a default judgment it could be set aside for failure to effect service of the Originating processes on the Respondent.

It was further argued by the Appellant that, the learned trial Judge erred when he granted an order of interlocutory injunction in favour of the defendant who did not file any statement of defence. That, the order of injunction dispossessed the Appellant of possession of which he had, even before judgment was entered in his favour. Learned Counsel for the Appellant then contended that, an order of interlocutory injunction, is granted to maintain status quo pending determination of the applicant’s right. That it can only be granted in favour of a defendant before judgment. The case of Madubuike v. Madubuike (2000) FWLR (pt.30) p.2611 and Praying

Band of C & S v. Udokwu (1991) 3 NWLR (pt. 182) p. 719 was then cited to submit that in the instant case, the facts in the affidavit in support show that the Respondent was not in possession of the land in dispute but the Appellant was.

Learned Counsel for the Appellant went on to submit that the learned trial Judge did not advert his mind to the conditions that must be fulfilled by the Respondent before the order of interlocutory injunction can be granted. That the learned trial Judge did not make reference to any facts or set of facts put before the Court to warrant the grant of the order of interlocutory injunction, but relied on the facts in support of the application to set aside the judgment, to grant the order of interlocutory injunction.
The cases of Biyo v. Aku (1996) 1 NWLR (pt 422) p.1 and Iyimoga v. Gov. of Plateau State (1994) NWLR (pt.360) p.103 were relied upon to urge us to set aside the order of injunction granted by the trial Court.

The purpose of granting an order of interlocutory injunction is to protect the violation of a Plaintiff’s right. Generally, the decision whether or not to grant the interlocutory injunction is

the discretionary power of the Court, and which discretion must be exercised based on sufficient facts which warrant that it be granted. It is not granted at the whims and caprice of the trial Judge. See Dyktrade Ltd v. Omnia (Nig.) Ltd (2000) 7 S.C; (pt.1) p.56: Oyekanmi v. NEPA (2000) 15 NWLR (pt.690) p.414 and Okeke v. Oruh (1999) 6 NWLR (pt.606): p.175. In considering the issue therefore, each case must be viewed from the peculiar or special circumstances of that case, and no case will be relied on as precedent so as to fetter the exercise of discretion in another case. See Alcatel Kabelmetal (Nig.) Ltd v. Ojuegbele (2003) 2 NWLR (Pt. 805) p. 429 and Ayo-Ayodele Pharm. Chem. (Nig) Ltd. v. N.I.D.B. Ltd (2000) 1 NWLR (pt. 653) p. 420.
Generally, an order of interlocutory injunction is granted in the course of the proceedings, and at any stage of the proceedings for the purpose of keeping the parties in status quo till the determination of the action. See Obeya Memorial Specialist Hospital v. AG for the Federation (1987) 3 NWLR (pt. 60) p. 325 and Kotoye v. C.B.N. (1989) 1 NWLR (pt.98) p. 419. In the determination of whether or not to grant an

interlocutory injunction pending the trial of the substantive matter, the Court will consider several factors, such as:
(a) Whether the applicant has shown that there is a serious question to be tried;
(b) Whether the applicant has shown that the balance of convenience is on his side;
(c) Whether the applicant has shown that damages cannot be an adequate compensation for any damages or injury he may suffer, if at the end he succeeds.
(d) The applicant must also show that he is not guilty of any reprehensive conduct;
(e) Whether the applicant has given a satisfactory undertaking as to damages.
The over-riding consideration for the grant of the order of interlocutory injunction is the preservation of the res, since the law holds that the res should not be destroyed or annihilated before the Court enters judgment in the case, one way or the other. See Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (pt.162) p.265; 7-Up Bottling Co. Ltd. v. Abiola & Sons (Nig) Ltd. (1995) 3 NWLR (pt. 383) p. 257 and Akinpelu v. Adegbore (2008) 10 NWLR (pt, 1096) p. 531. See also Oba James Adeleke & Ors v. Nafiu Adewale Lawal & Ors (2013)

LPELR-20090 (SC).

Now, in granting the order of interlocutory injunction, the learned trial Judge held at page 229 of the Record of Appeal as follows:
“Let me add that granting an injunction would help preserve the res, so the Applicant can defend the action and res protected till final determination of the rights of the parties. This application therefore succeeds and hereby grant all the orders sought.”

The learned trial Judge then proceeded to order that the Appellant as claimant should serve all the Originating processes on the Respondent (Defendant) within 14 days. It should also be noted that, the Respondent had in Paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21 – 30 of the affidavit in support, deposed to facts showing his right to the res in issue.
Those facts and those deposed to in Paragraphs 32, 33, 34, 35 and 36 of the affidavit have sufficiently satisfied the conditions for the grant of the interlocutory injunction. Unfortunately, the Appellant did not file any counter-affidavit challenging those facts. It therefore remains established that the learned trial Judge rightly granted the interlocutory injunction sought, which

His Lordship clearly stated is to preserve the res from being destroyed or annihilated.

Having found as above, it is clear that this appeal has no merit. It therefore fails and is accordingly dismissed. The Ruling of the Court below, delivered on the 21st day, of June, 2012 in Suit No. HCT/210/2007 is hereby affirmed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the benefit of a preview of the lead judgment of my learned brother, Tsammani, JCA. I fully agree with his reasonings and conclusion that this appeal lacks merit. I too would dismiss it. I abide by all the consequential orders of His Lordship, including the orders for costs.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of having a preview of the judgment of my learned brother Haruna Simon Tsammani JCA and I agree with the reasoning and conclusions of my lord in his judgment.

By way of a modest contribution, I wish to say that there should be no knee jerk thinking that a Court of coordinate jurisdiction cannot set aside the judgment or order of a similar Court. Ordinarily, a Court of coordinate jurisdiction will not

set aside the judgment of a Court of similar jurisdiction as that should normally be the function of an appellate Court.
However, where the judgment of a Court of coordinate jurisdiction is a nullity ab-initio, such a judgment can be set aside. See Onagoruwa v. IGP & Ors (1991) 5 NWLR part 593 p.638. See also Sken Consult (Nig) Ltd & Anor v. Ukey (1981) 1 SC 6.

A nullity in law is a void act, an Act which has no legal consequence; an act that is not only bad but as Lord Denning LJ stated in UAC. Ltd v. Macfoy (1961) 3 All ER 1169, is incurably bad. That was what the lower Court found in this case. The judgment made by Okunsokan J. on 27/10/2009 was fundamentally defective in that the originating processes were not served on the Defendant in the case. In the circumstances, the judgment was a nullity ab-initio and consequently Ogunsanya J. could set it aside.

For this reason and the fuller and more detailed reasons given by my learned brother, I too affirm the Ruling of the lower Court. I abide by the order as to costs made by my learned brother.

Appearances

A.M. Makinde, Esq. with him,
Mrs. O. N. Arigbede For Appellant

AND

Unrepresented For Respondent