MICHAEL OKOYE v. CHRISTIAN CHUKWUEMEKA ANIKA
(2014)LCN/7599(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of December, 2014
CA/E/149/2012
RATIO
APPEAL: FILING AN APPEAL; HOW TO DETERMINE WHETHER OR NOT THE APPEAL WAS FILED WITHIN THE TIME PRESCRIBED BY THE RULES
The question whether or not the appeal was filed within the time prescribed by the Rules will depend upon whether that decision was final or Interlocutory.
A final decision includes a final Judgment or Order’ See: Falola vs. Union Bank (2005) 2 SCNJ 209, 214 – 215; Ogolo vs. Ogolo (2006) 2 SCNJ 235.
A decision is final if it brings to an end the rights of parties in the matter. A decision is also final if it disposes of the subject-matter of litigation or controversy to the extent that nothing is left after the Judgment or Order of Court, where a decision is not final it is Interlocutory by which it means that the decision only settles some intervening issues. Such decisions are interim, temporary or provisional. See:-
(1) Hi Flow Farm Int. vs. Unibadan (1993) 4 NWLR (Pt.29) 719.
(2) Gonney & Anor. Vs. V.C. Society & Ors. (2009) 4-5 SC (Pt.111) 156, 179-181.
This Court in Onogoruwa vs. State (1993) 7 NWLR (Pt.305) 49 held that the word “Final” in Section 258(1) of 1979 Constitution of Federal Republic of Nigeria (in pari materia with Section 241(1) of 1999 Constitution of Federal Republic of Nigeria as amended) means “last, decision. It also means an act of the end of a thing”. The word final as used under Section 241(1) of 1999 Constitution cannot have a different meaning or interpretation.
Section 241 of the 1999 Constitution of Federal Republic of Nigeria deals with cases where a litigant can appeal as of right and these include final decisions in any Civil or Criminal Proceedings, or cases where the ground of appeal involves questions of law alone in any Criminal or Civil Proceedings, among others.
By Section 241(b) of the Constitution a litigant can file appeal as of right even in Interlocutory proceedings so far as the ground of appeal is on questions of law alone. The issue for our consideration however is the nature of the decision of the High Court in Awka given on 8-2-2012.
Decisions in Ude vs. Agu (1961) All NLR 65, 66; Ifediora vs. Ume (1988) 2 NWLR (Pt.74) 5114; Falola vs. Union Bank (supra) at page 215 are all to the same effect on the point that to determine whether a given decision was Final or Interlocutory, all that is needed is to look at the result or the nature of the Order made and not on the nature of the proceedings and by undertaking that exercise, are the rights of parties thereto finally completely and conclusively been determined. per. SAIDU TANKO HUSAINI, J.C.A.
COURT: JURISDICTION; WHETHER THE COURT HAS THE JURISDICTION TO SET ASIDE ITS OWN JUDGMENT AND WHETHER THE COURT HAS THE CAPACITY TO INQUIRE INTO THEIR OWN JUDGMENT
The authorities I have come across on this subject i.e. whether or not the High Court can set aside its own default Judgment, are unanimous that it can. Let us take a few examples. In Kalumark & Anor. Vs. Gabriel Eke (Zone) 5 NWLR (Pt.865) 54, 76-77, the Supreme Court held:-
“If the Judgment is a nullity, the Court which gave it can set it aside on a motion by any party affected by it. This is so because any Court of record including the Supreme Court has inherent jurisdiction to set aside it own Judgment given in any proceedings in which there has been a fundamental default such as one which goes to the issue of jurisdiction and competence of Court.”
In Ayorinde vs. Ayorinde (2004) 15 NWLR (Pt. 889) 83, 102-103, the Court of Appeal held that:-
“A Court lacks the jurisdiction to set aside its own decision except as permitted by the common Law such as, when the decision is a nullity by reason of breach of procedure which has occasioned a miscarriage of Justice, or as provided by the rules, such as when judgment is given in default or the Court is given the power to discharge an order it has made.”
Decisions in Ugwu v. Aba (1961) ANLR 424, William vs. Hope Rising Voluntary Funds (1982) 1-2 SC 15, 154; Mohamad vs. Husaini (1998) 12 SCNJ 136, 153-194; Evans vs. Bartlam (1937) A.C. 413, 480 are all to the same effect. A court of record has inherent jurisdiction to set aside its own Judgment where it is established that the Judgment is a nullity. What is required of the court before whom such an application is made, or brought is, upon the hearing of the application, inquire whether the default Judgment sought to be set aside was indeed a nullity.
Court have the capacity to inquire into their own jurisdiction. See: Attorney General Bendel State vs. Agbolodeh (1999) 2 NWLR (Pt.592) 476. There are a variety of reasons why a judgment obtained in default can be set aside and this include non-service of processes of Court, including originating processes filed in the Suit. See: Mark vs. Eke (Supra). Unless there was a hearing of the application, before it a Court cannot embark on this investigative duties (so as) to discover whether or not a given Judgment was a nullity. This is why the hasty manner by which the application brought before the Court below was struck out in lamine constituted a breach of Appellant’s right to hearing. All Courts have a duty to consider and hear applications placed before them no matter how stupid such applications appear to be on the face of it. By striking out the application in lamine, the Court below also gave the impression wrongly though, that it lacked the powers or jurisdiction to set aside its own judgment or orders contrary to the authorities or the decision referred to earlier. per. SAIDU TANKO HUSAINI, J.C.A.
JUSTICES
AMIRU SANUSI (OFR) Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria
Between
MICHAEL OKOYE Appellant(s)
AND
CHRISTIAN CHUKWUEMEKA ANIKA Respondent(s)
SAIDU TANKO HUSAINI, J.C.A. (Delivering the Leading Judgment): The High Court of Anambra State at its sitting in Onitsha on the 18th August, 2010, in the Judgment delivered same date granted all the reliefs sought by the Respondent herein as the Plaintiff in the suit instituted at that Court vide the Writ of Summons in Suit NO. A/319/2003 against the defendant, the Appellant herein, in default of pleadings and appearance.
Not happy with the outcome of proceedings leading to that Judgment at that High Court the appellant (Defendant) approached and filed an application, a Motion on Notice at Awka Judicial division of Anambra State High Court on 17/08/2011 where he sought multiple reliefs namely;
“a) An Order extending the time within which the defendant may apply to the Court for an Order setting aside the Order for substituted service made in this suit.
b) An Order extending the time within which the defendant may apply to the Court for an Order setting aside the proceedings and Judgment delivered in this Suit.
c) An Order setting aside the Order for substituted service made by this court.
d) An Order setting aside the Judgment of Honourable Justice P.N.C. Umeadi then of the High court of Anambra State holden at Onitsha delivered in the above suit on 18th day of August, 2010 in default of appearance of the defendant and without proper service of the Writ of Summons and other processes on the defendant.”
That application at the Court below was accompanied with an affidavit of 26 paragraphs in support which the Appellant himself had deposed to. Further to that were 2 (two) other or further affidavits deposed to by Nonye Okoye and Ikegbuna Nwoyanta on 12/08/2011 on behalf of the appellant in support of that same application as can be seen at pages 69-79 of the record of Appeal. His Counsel in addition, filed a written address on the 17/8/2011 in support of the Motion on Notice.
The appeal to this Court is sequel to the proceedings of the Court below before Hon. Justice C.A.C. Emembolu held or conducted on 8th February, 2012 at the High Court of Justice, of Anambra State, Awka Judicial Division, Awka. The proceedings and the Ruling of that Court in particular are at page 105 of the Record of Appeal. That is the subject of appeal to this Court. The appellant had filed his Notice of Appeal on the 23/2/2012. It is dated 20th February, 2012. I refer to pages 110-112 of the Record of Appeal. The Notice of appeal has only 1 (one) Ground of Appeal.
Briefs of argument were settled by Learned Counsel for the Appellant and Respondent respectively. The Brief of Argument for the Appellant dated the 20th February, 2014 was filed on the 4th March, 2014 while the Amended Brief of Argument for the Respondent dated the 25th April, 2014 was filed the 28th April 2014. In it he raised a point or points of Preliminary Objection.
The appellant filed a Reply Brief and Reply to Preliminary Objection on the 4th March, 2014. The process itself is dated 20th February, 2014. It is worthy of note that all the processes referred to above all have the name of “George Okwudili Anyika” reflected on them, who had been substituted for Christian Chukwuemeka Anyika as “Respondent on the Order made in this Court on 11/02/2014.
By his Amended Brief of Argument at paragraphs 4.0 the Respondent has raised a point of Preliminary Objection and proceeded thereat at paragraph 4.01-4.10 to advance arguments in support at pages 3-6 of his brief in line with his Notice of Preliminary Objection dated the 28th April, 2014.
The appeal came up in this Court for hearing on 23/9/14. The Respondent was represented by Counsel, Amaka Egeano who invited the Court to the Notice and the objection raised by them in their brief and the arguments canvassed thereto in urging this Court to uphold the Preliminary Objection and strike out the appeal.
Chief G.O. Osuigwe is Counsel for the appellant. In the Reply brief filed by them on 4-3-2014 at paragraph 1.01 to 1.06, he debunked the issues raised in the Preliminary Objection.
Learned Counsel on both sides thereafter addressed the Court on the merits of the appeal should this Court not find favour with the objection taken by Learned counsel for the Respondent.
It is proper I think to first address issues arising from the Preliminary Objection of which the grounds as stated in the Notice are that:
“1) The appellant did not first seek and obtain the leave of either the High Court or the Court of Appeal before he filed the Notice and Ground of Appeal in this appeal;
2) That assuming but not conceding that the appeal is on law alone, the appellant filed the appeal outside the statutory 14 days allowed the appellant to file same without first applying for and obtaining extension of time.
3) That the sole issue for determination is not distilled/formulated from the Ground of appeal; and
4) That the Suit number and the Appeal number contained in the Appellant’s Brief do not have any nexus with the present appeal.”
Learned Respondent’s Counsel at pages 3-5 of his brief has made submissions urging this Court to uphold his Preliminary objection. These submissions in the main are:
1) That the decision of the trial Court giving rise to this appeal was an interlocutory decision.
2) That the appeal is against trial Court’s exercise of its discretion.
3) That appeal being against Court’s exercise of its discretion, at is an appeal on Grounds of mixed law and facts; not on Ground of law.
4) An appeal on grounds of mixed law and fact require leave of either the High Court or the Court of appeal otherwise the appeal is incompetent and this Court lacks jurisdiction to hear it.
5) That those circumstances provided for under Section 241 of the 1999 Constitution of the Federal Republic of Nigeria as amended are present in this case on appeal.
6) Learned Respondent’s Counsel cited a plethora of decided cases to include:-
(i) Erisi vs. Idika (1987) 4 NWLR (Pt.66) 503.
(ii) Akpausi vs. Umweni (1982) 11 SC 137.
(iii) Tiamiya vs. Olaogun (2008) 12 NWLR (Pt.1115) 66, 90-92.
(iv) Adebanjo vs. Ogun State Sports Council (2005) All FWLR (Pt.279) 1319.
(v) Ojemen vs. Momodu (1983) 1 SCNLR 188, 206.
The response to these submissions are as contained in the reply brief filed on the 4/3/14. By that the Learned appellant’s Counsel has contended that the Ruling of the High Court sitting in Awka on 8/2/012 was:-
1) A final and not an Interlocutory decision.
2) Being a final decision leave to appeal against such decision was not required in an appeal on ground of law.
3) Being a final decision the person appealing has 3 months not 14 days within which to file a Notice of appeal.
4) That the appeal or Notice of appeal in this matter was filed within the 3 months as prescribed by law.
5) That the nature of the proceedings should be looked at to determine whether an Order is final or Interlocutory.
6) Learned Appellant’s Counsel cited the following authorities among others,
(i) Ude & Ors. vs. Agu & Ors. (1961) All NLR 65.
(ii) Blay vs. Solomon 12 WACA 175.
(iii) Ifediorah vs. Ume (1988) 2 NWLR (Pt.74) 5, 14.
(iv) I.B.C. vs. Lambert Iwueze (1995) 1 NWLR (Pt.372) 488, 501 paragraph B-C.
The decision, the subject-matter of the instant appeal is at page 105 of the Record wherein the High Court sitting in Awka on 8th February, 2012 held thus:-
“The proper action for the defendant is to go on appeal. Suit struck out. Judgment obtained on 17/8/02. Certified True Copy of Judgment in Court as Exhibit.”
It can be seen from the Ruling or decision above, that the trial Judge “struck out” the “suit”. What indeed was struck out is/was the Motion on Notice brought before the court on 8.2.2012 for hearing.
The trial Court in that same Ruling or decision above made reference to the Judgment obtained on 17/8/02.” This is the Judgment which the Motion on Notice before the trial Court had sought to set aside. This is the same Judgment delivered on Wednesday, the 18th day of August, 2010 at the High Court of Anambra State, holden in Onitsha in suit N0. A/319/2003. The Presiding Judge, Hon. Justice N.C. Umeadi in his concluding remarks ordered as follows:-
“The Suit succeeds and I make the following orders:-
1) It is declared that the Plaintiff is the person entitled to the Statutory Right of Occupancy over the parcel of land known as “Ana Obu Christian Anika” and verged blue in the Plaintiffs amended survey Plan No. TG/AN016/2007 filed along with the Amended Statement of Claim and marked as Exhibit A on 28/7/2012.
2) An Order of perpetual Injunction restraining the defendant, his servants, agents or privies from further trespass on the said land of the Plaintiff.
3) I award N100,000.00 being general damages against defendant on Plaintiff’s land.
4) I award cost of N50,000.00 to the Plaintiff against the defendant.”
There is, thus a nexus between the Judgment of the High Court delivered on the 18th august, 2010 in suit N0. A/319/2003 and the decision of the High Court of Anambra State holden at Awka on 8th February, 2012. That nexus is the Motion on Notice dated and filed at the Registry of the High Court, Awka on 17/8/2011. I refer to pages 60-79 of the Record of Appeal. There is also the nexus between the decision of the High Court sitting in Awka delivered on the 8/2/2012 and the instant appeal. The Notice of appeal at page 110 of the Record says it all. The contents are self explanatory.
The main issue in this Preliminary Objection is whether the decision of the High Court of Justice, Anambra State delivered in Awka on 8/2/2012 is a FINAL decision OR INTERLOCUTORY one. The question again is the meaning of the word or term “Decision”. What is meant by it?
I will, in the bid to provide answers to these questions, call in aid certain Constitutional and statutory provisions thus:-
A) Section 241(1)(a)(b) of the Constitution of FRN 1999 provides:-
“(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
(b) where the Ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings…..”
B) Section 242(1) of the Constitution amended provides:-
“Subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”
C) Section 318 (1) of 1999 Constitution which defines the word “decision” to mean, in relation to a Court,
“any determination of that Court and includes Judgment, decree, Order, Conviction’ Sentence or recommendation.”
D) The Court of Appeal Act, 2004 provides at Section 24(1)(2)(a)(b) thus:-
“24(1) Where a person desires to appeal to the Court of Appeal, he shall give Notice of Appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period prescribed by the provision of subsection (2) of this Section that is applicable to the case.
(2) The periods for the giving of Notice of Appeal or Notice of application for leave to appeal are:-
(a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an Interlocutory decision and three months where the appeal is against a final decision;
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.”
E) Order 6 Rule 2(1) of the Court of Appeal Rules, 2011 is the provision as to Form a Notice of Appeal is to take and information the Notice should contain.
The appeal to this Court was commenced vide the Notice of Appeal filed on 23/2/2012 at the Registry of the High Court at Awka. The decision appealed against was given on 8th February, 2012. Thus the Notice of Appeal was filed some 15 days or thereabout after the decision appealed against was given.
The question whether or not the appeal was filed within the time prescribed by the Rules will depend upon whether that decision was final or Interlocutory.
A final decision includes a final Judgment or Order’ See: Falola vs. Union Bank (2005) 2 SCNJ 209, 214 – 215; Ogolo vs. Ogolo (2006) 2 SCNJ 235.
A decision is final if it brings to an end the rights of parties in the matter. A decision is also final if it disposes of the subject-matter of litigation or controversy to the extent that nothing is left after the Judgment or Order of Court, where a decision is not final it is Interlocutory by which it means that the decision only settles some intervening issues. Such decisions are interim, temporary or provisional. See:-
(1) Hi Flow Farm Int. vs. Unibadan (1993) 4 NWLR (Pt.29) 719.
(2) Gonney & Anor. Vs. V.C. Society & Ors. (2009) 4-5 SC (Pt.111) 156, 179-181.
This Court in Onogoruwa vs. State (1993) 7 NWLR (Pt.305) 49 held that the word “Final” in Section 258(1) of 1979 Constitution of Federal Republic of Nigeria (in pari materia with Section 241(1) of 1999 Constitution of Federal Republic of Nigeria as amended) means “last, decision. It also means an act of the end of a thing”. The word final as used under Section 241(1) of 1999 Constitution cannot have a different meaning or interpretation.
Section 241 of the 1999 Constitution of Federal Republic of Nigeria deals with cases where a litigant can appeal as of right and these include final decisions in any Civil or Criminal Proceedings, or cases where the ground of appeal involves questions of law alone in any Criminal or Civil Proceedings, among others.
By Section 241(b) of the Constitution a litigant can file appeal as of right even in Interlocutory proceedings so far as the ground of appeal is on questions of law alone. The issue for our consideration however is the nature of the decision of the High Court in Awka given on 8-2-2012.
Decisions in Ude vs. Agu (1961) All NLR 65, 66; Ifediora vs. Ume (1988) 2 NWLR (Pt.74) 5114; Falola vs. Union Bank (supra) at page 215 are all to the same effect on the point that to determine whether a given decision was Final or Interlocutory, all that is needed is to look at the result or the nature of the Order made and not on the nature of the proceedings and by undertaking that exercise, are the rights of parties thereto finally completely and conclusively been determined?
I have applied the test or principles set down in those cases and I have come to the conclusion that the decision appealed against was a Final decision so far as the Order of the High Court Awka striking out the proceedings before it on 8/2/2012 conclusively settled the issue or issues brought to it by way of the Motion on Notice. There is nothing left for parties to pursue after that ruling or decision was given. See: Ogolo vs. Ogolo (supra).
Being a Final decision within the meaning of Section 241(1) of the 1999 Constitution of Federal Republic of Nigeria (as amended), the appellant has 3 months within which to appeal against that decision of the High Court sitting at Awka. Leave to appeal against the said decision was/is not required.
The apex Court has held in Ogolo vs. Ogolo (supra), per Onnoghen, JSC at page 252 that:-
“I therefore hold that the decision of the trial Court refusing to set aside the Judgment of 18/10/96 in default of defence being a final decision, the present respondent does not need leave of Court to appeal against it to the Court of Appeal particularly as Section 220(1)(a) of 1979 grants the respondent the right to appeal against that decision as of right. In other words the respondent does not need leave of Court to appeal against that decision whether the ground(s) of appeal is (are) of mixed law and facts or facts alone…”
I’m bound by that decision, the ratio which apply to the appeal case on hand. See further the decision in: IBC vs. Iwueke (1995) 1 NWLR (Pt.372) 488, 501; Oyeauga vs. University of Ife (1964) WNLR 39. Any contrary submission as done by the learned Respondent’s Counsel in his brief of argument is misconceived.
It is my considered opinion also that the Notice of appeal dated 20/2/2012 and filed on the 23/2/12 against the decision or Order made at the High Court sitting in Awka on 8/2/12 was duly entered within the time frame of 3 months allowed for entry of appeal against a Final order or Judgment.
In the said Notice of Appeal at page 110 of the record is the ground of appeal which, shorn of the particulars state that:-
“The Learned trial Judge erred in law when he struck out the Motion on Notice referred in the ruling as the suit without hearing and consideration of same on the merit on the ground that appeal is the proper action for the defendant to take.”
It has been argued by the learned Counsel for the Respondent in his brief that this appeal was an appeal challenging the exercise of discretion by the trial Judge who struck out the Motion on Notice as such the appeal is one of mixed law and fact for which leave was required.
This misconception of the learned Counsel for the respondent stem from the erroneous view held by him that the appeal was against an Interlocutory Order of the trial Court who in the exercise of his discretion, struck out the matter interlocutorily. If that were the position, then, leave of either the High Court or the Court of Appeal would be sought by the intending appellant as a precondition for entering an appeal under Section 242(1) of the 1999 Constitution as amended. Such appeal over the proper exercise of discretion or otherwise, based mainly on ground of mixed law and fact, require leave of Court first sought and granted. See Ifediora vs. Ume (1988) 2 NWLR (Pt.74) 5.
But from the facts presented in this matter as found on the pages of the record of appeal before us, my view is that the appeal to this Court is against a final decision of the High Court.
One of the grounds over which the Respondent took objection to this appeal being heard is on the issue formulated by the appellant as not being supported by the ground of appeal filed hence the issue so formulated should be discountenanced as not meant for determination by this Court. Learned Respondent’s Counsel cited and relied on the decision in Niger Process Ltd vs. NEL Corp. (1989) 3 NWLR (Pt.107) 68 and Olowosago vs. Adebanjo (1988) 4 NWLR (Pt.88) 275.
That, no doubt is the position of the law and to which there are a plethora of authorities. This court in Paulinus Ikedigwe vs. FRN (2010) LPELR – 4295 (CA) has held that an issue formulated for determination is incompetent which does not arise from or is not related to any of the grounds of appeal. Such an issue is liable to be struck out and argument proffered thereto, discountenanced. See further:- Registered Trustees of the Apostolic Faith Mission vs. U.B James (1987) 7 SCNJ 167.
The appellant in his brief of argument at page 3 formulated just 1 (one) Issue for determination of Court and the issue being:-
“Whether appeal is the only option open to the appellant who seeks to set aside default Judgment entered against him in default of appearance and without the respondent filing a Statement of Claim in the suit.”
I have earlier in this discourse made reference to the ground of appeal. But at the risk of repetition the said ground of appeal states thus:-
“The learned trial Judge erred in law when he struck out the motion on notice referred in the ruling as the suit without hearing and consideration of same on the merit on the ground that appeal is the proper action for the defendant to take.”
In order to decide whether a given issue meant for determination of court was derived from a given ground of appeal, I should say, advisedly though, that the 2 (two) i.e the issue meant for determination and the ground of appeal be placed or put side by side together with a view of comparing them and if by this exercise there is no feature in the issue so raised for determination which has relevance to the complaint in the ground of appeal, then that issue was not derived from that ground hence it is to that extent, incompetent.
I find in this exercise a common thread running through both the Ground of Appeal and the issue raised for determination as to suggest, which is the contention of the Counsel for the appellant that the procedure by way of appeal by a party who is aggrieved by the decision of a trial court cannot be the only way or method to seek the review of that decision. I agree.
What I have tried to say all along is that upon a close perusal of record of appeal, the issue raised by Appellant for determination arise naturally from the ground of complaint and it is to that extent valid. Accordingly, the objection raised on this account cannot stand. All points (of objection) having failed, the Preliminary Objection is dismissed.
I will now address the merits of this appeal. I will also reiterate the lone issue raised by the appellant in his brief of argument, for the purpose of our discourse thus:-
“Whether appeal is the only option open to the appellant who seeks to set aside default Judgment entered against him in default of appearance and without the respondent filing a Statement of Claim in the suit.”
The Respondent on the other hand in his brief of argument put the issue thus:-
“Whether the trial Judge erred in law when she struck out the motion on Notice without hearing and considering same on the merit on the ground that appeal is the proper action for the appellant to take.”
It is important to note at this point that this appeal is not against the Judgment delivered on the 18th August, 2010 by Hon. Justice N.C. Umeadi at the High Court of Anambra State sitting at Onitsha. The appeal, rather is against the decision of the Anambra State High Court given at Awka on 8th February, 2012 by Hon. Justice C.A.C. Emenbolu by which the motion on Notice dated and filed in the said court on 17/08/2011 was struck out.
The appeal not being against the decision of 18th August 2010, it follows that all issues canvassed and submissions made in the appellant’s brief of argument before this Court as they relate and the propriety or otherwise of that Judgment is of no moment in deciding the appeal or issues raised in this appeal. These are matters which the High Court on hearing the application, that is the motion seeking to set aside its own default Judgment, should consider. But it is clear that the Court below did not consider the application brought to it on the merits before making the order striking out the application in lamine. Is the Court below right in refusing to hear application brought to it to set aside its own default Judgment?
The authorities I have come across on this subject i.e. whether or not the High Court can set aside its own default Judgment, are unanimous that it can. Let us take a few examples. In Kalumark & Anor. Vs. Gabriel Eke (Zone) 5 NWLR (Pt.865) 54, 76-77, the Supreme Court held:-
“If the Judgment is a nullity, the Court which gave it can set it aside on a motion by any party affected by it. This is so because any Court of record including the Supreme Court has inherent jurisdiction to set aside it own Judgment given in any proceedings in which there has been a fundamental default such as one which goes to the issue of jurisdiction and competence of Court.”
In Ayorinde vs. Ayorinde (2004) 15 NWLR (Pt. 889) 83, 102-103, the Court of Appeal held that:-
“A Court lacks the jurisdiction to set aside its own decision except as permitted by the common Law such as, when the decision is a nullity by reason of breach of procedure which has occasioned a miscarriage of Justice, or as provided by the rules, such as when judgment is given in default or the Court is given the power to discharge an order it has made.”
Decisions in Ugwu v. Aba (1961) ANLR 424, William vs. Hope Rising Voluntary Funds (1982) 1-2 SC 15, 154; Mohamad vs. Husaini (1998) 12 SCNJ 136, 153-194; Evans vs. Bartlam (1937) A.C. 413, 480 are all to the same effect. A court of record has inherent jurisdiction to set aside its own Judgment where it is established that the Judgment is a nullity. What is required of the court before whom such an application is made, or brought is, upon the hearing of the application, inquire whether the default Judgment sought to be set aside was indeed a nullity.
Court have the capacity to inquire into their own jurisdiction. See: Attorney General Bendel State vs. Agbolodeh (1999) 2 NWLR (Pt.592) 476. There are a variety of reasons why a judgment obtained in default can be set aside and this include non-service of processes of Court, including originating processes filed in the Suit. See: Mark vs. Eke (Supra). Unless there was a hearing of the application, before it a Court cannot embark on this investigative duties (so as) to discover whether or not a given Judgment was a nullity. This is why the hasty manner by which the application brought before the Court below was struck out in lamine constituted a breach of Appellant’s right to hearing. All Courts have a duty to consider and hear applications placed before them no matter how stupid such applications appear to be on the face of it. By striking out the application in lamine, the Court below also gave the impression wrongly though, that it lacked the powers or jurisdiction to set aside its own judgment or orders contrary to the authorities or the decision referred to earlier.
The option for appeal available to the party against whom judgment was given in default does not foreclose that party from exercise of his rights to have the default judgment set aside as demonstrated by the decision in Mark vs. Eke (Supra). I am therefore of the opinion that the Court below in the Ruling delivered on the 8/2/2012 acted on wrong principles when the Court refused to hear on the merits, the application brought before it seeking to set aside the default Judgment by that Court, sitting in Onitsha. This appeal is allowed for this and other reasons as earlier discussed in this Judgment.
Learned Counsel for the Appellant, Chief G. Oseloka Osuigwe has urged this Court to exercise its powers under Section 15 of the Court of Appeal Act and make any order or orders necessary as would determine issue in this appeal.. He cited decisions in Nneji vs. Chief Chukwu (1988) 3 NWLR (Pt.81) 184 and Inakoju & 5 Ors. vs. Adeleke & 3 Ors. (2007) I KLR (Pt.22) 291, in urging this Court to resolve the issue in favour of the appellant.
One of the conditions for the application of Section 15 of the Court of Appeal Act as stated in Ezeigwe vs. Nwawulu & Ors. (2010) 4 NWLR (Pt.1183) 159 is the availability of necessary material for the Court of Appeal to consider in the exercise of those powers.
Considering however that the Motion on Notice seeking to set aside the default Judgment has not been taken or heard at the trial Court on the merits and a decision given, whether right or wrong, there can be no material before this Court at the moment upon which the Court can invoke those powers under Section 15 of the Court of Appeal Act and determine the issue in this appeal.
It is for this reason I felt the need to remit this matter to the Honourable Chief Judge, Anambra State for reassignment to a Judge of the High Court other than Justice C.A.C. Emembolu for hearing of the Application, the Motion on Notice seeking as it were, an Order to set aside the default Judgment delivered at the High Court of Justice, Onitsha.
That is the Order and Judgment.
AMIRU SANUSI, J.C.A.: The draft Judgment prepared by my learned brother Hussaini JCA was made available to me before now. On going through same, I found myself in entire agreement with his reasoning and the conclusion he arrived at that the appeal is meritorious and has to be allowed. I accordingly do same and I abide by the consequential order made in the lead Judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment delivered by my Learned Brother SAIDU TANKO HUSSAINI, JCA. I agree with the reasoning and conclusions therein.
I also allow this appeal. I agree with the orders made therein.
Appearances
Chief G. Oseloka OsuigweFor Appellant
AND
Amaka Ezeno Esq.For Respondent
