MR. ADISA ADEOGUN v. DR. ADETUNJI OLUKAYODE AKINYEMI
(2013)LCN/6089(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of April, 2013
CA/L/579/06
RATIO
“Black’s Law Dictionary defines “Ex Parte” thus: “On one side only; by or for one party; done for, on behalf of, or on the application of one party only. A judicial proceeding, order, injunction etc., is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to or contestation by any person adversely interested” Per IYIZOBA, J.C.A.
“Instructively, the term consequential order denotes an order of court giving effect to a judgment or decision to which it is consequential or resultant therefrom. Such an order is normally directly traceable to, or flowing from, the judgment or decision duly prayed for and granted by the court. See OBAYAGBONA VS. OBAZEE (1970) 5 SC 247; ODOFIN VS. AGU (1992) LPELR -2225 (SC); (1992) NWLR (Pt. 229) 350. From the foregoing authorities, it can be surmised that a consequential order is not merely incidental to a judgment or decision, but one necessarily directly and naturally flowing from it; thus inevitably consequent thereupon. As authoritatively held by the Supreme Court, a consequential order – “Must be giving effect to the judgment already given not by granting a fresh, unclaimed or unproven relief. It must be closely related to the substantive relief claimed.” See DINGYADI VS. INEC (NO.1) (2010) 18 NWLR (Pt. 1224) 1; (2010) LPELR -951 (SC) per Adekeye, JSC @ 53 paragraphs D -F. See also AKINBOBOLA VS. FISKO (1991) 1 NWLR (Pt. 167) 270; OBAYAOGBENA VS. OBAZEE (1972) 2 NSCC 383; EZEONU VS. ONYECHI (1996) 3 NWLR (Pt. 438) 499; UMAN VS. MOHAMMED (1999) 9 NWLR (Pt. 617) 116.” Per SAULAWA, J.C.A
“Hence, in Oduola v. Nabhan (1981) 12 NSCC 180, 280, the apex court announced, with magisterial finality, that it was impossible to relax the rule which required that a person in physical occupation of property could, only, be ejected in proceedings in which he was a party.” Per NWEZE, J.C.A.
“Undoubtedly, the principle of fair hearing, as cherishingly enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, is not merely a technical, philosophical, or rhetorical doctrine. Indeed, it’s one of fundamental substance. What’s more, it’s not merely the question of whether a party is entitled to be heard before a decision is reached in a given case. But whether he has in fact been accorded the opportunity to be heard. Thus, the refusal by the lower court to accord the Appellant the opportunity to be heard before making the vexed order, thereby arbitrarily granting possession of the property in dispute to the Respondent, has amounted to a denial (breach) of fair hearing as duly enshrined in Section 36 (1) of the Constitution (supra). See BAMAIYI VS. STATE (2001) 8 NWLR (Pt. 715) 270. EKE VS. MIL. ADMIN. IMO STATE (2007) 13 NWLR (Pt. 1052) 531 @ 561 paragraphs C -E; 564 paragraphs C -D. The implication of a court arbitrarily embarking on a trial of an action in breach of the party’s right to fair hearing is ominous. As the principle is indeed well settled, that – “Where an appellate court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of being heard, the judgment (decision or order) thus entered is bound to be set aside.” See BAMAIYI VS. STATE (supra) 270; EKE VS. MIL. ADMIN. IMO STATE (supra) @ 564 paragraphs D -F. In yet another authoritative decision, the Supreme Court was reputed to have aptly held, inter alia, thus: “Under Nigerian Law, the rule which requires that a person in physical occupation of property can only be ejected in proceedings to which he is a party cannot be relaxed.” see ODUOLA VS. NABHAN (1981) 12 NSCC 180 @ 208 paragraph 50. I think, it was Obaseki, JSC who seemed to have bluntly reiterated the trite principle, to the effect that – “If the order made on the exparte application was an order granting leave to enforce the judgment it is a nullity as it was made in breach of the rules of Natural Justice, the Respondents not having been heard in the application.” See ENABIRHIRE VS. ATAMABO (1967) NMLR, 253 @ 257. See also APINKE VS. ADESANWO (1962) NWLR 339 @ 342; MACFOY VS. UAC LTD (1961) 2 WLR 1405 at 1409. Most interestingly, His lordship, Obaseki, JSC took the liberty to extensively refer to both authoritative decisions in APINKE VS. ADESANWO (supra) and MACFOY VS. UAC LTD. (supra) in arriving at the far -reaching decision in ENABIRHIRE VS. ATAMABO (supra). The far-reaching dictum cherishingly enunciated by the legendary Lord Denning, MR, in his erudite characteristics, in the notorious case of MACFOY VS. UAC LTD. (supra), is to the effect that – If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more 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 there. It will collapse? But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise.” Per SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
MR. ADISA ADEOGUN – Appellant(s)
AND
DR. ADETUNJI OLUKAYODE AKINYEMI – Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The instant appeal is a fall-out of the ruling of the High Court of Lagos State, which was delivered on April 19, 2004 by the Hon. Justice A. F. Adeyinka in Suit No: ID/339/88. By the ruling in question, the court below granted the Respondent a consequential order exparte of possession of land in dispute in the physical possession of the Appellant. Not unnaturally, being dissatisfied with the said consequential order, the Appellant filed an application, dated June 3, 2004 seeking leave of the lower court to appeal as a party interested against the ruling in question. The lower court, in its wisdom, granted that application on July 12, 2004. Consequent whereupon, the Appellant filed the notice of appeal thereof (on July 15, 2004), which is predicated upon two grounds.
BACKGROUND FACTS:
The facts and circumstances surrounding the present appeal are not far to seek. Indeed, they are deducible from the records of appeal. On March 11, 1988 the Respondent instituted the Suit (No. ID/339/88) in question, vide a writ of summons against Chief Arowolo (for himself and on behalf of the Olarokun family), seeking the following reliefs:
1. A Declaration that the Plaintiff is entitled to the statutory Right of Occupancy on, and over the land situate lying and being at Olayiwola Street, Oko Oba near Abule Egba in Ikeja Local Government Area of Lagos State which is more particularly described and delineated on the plan attached to the Deed of Conveyance, dated 23rd March, 1978 and registered as No. 60 at page 60 Volume 1715 of the Lands Registry in the office at Lagos.
2. N10,000 damages for trespass committed by the Defendants on the Plaintiffs said land at Olayiwola Street, Oko Oba.
3. An Order of perpetual injunction restraining the Defendants by themselves, their servants, workmen, privies or agents or otherwise howsoever from trespassing on the said land or disturbing or otherwise interfering with the Plaintiffs right over the land.
During the pendency of the Suit, the Respondent filed a motion on Notice, dated 16/3/93, seeking the following relief:
“An order joining Adisa Adeogun as 2nd Defendant in the above Suit.”
The reasons for the application were deposed to in paragraphs 2 -9 of the affidavit personally deposed to by the Respondent. On 25/5/93, when the motion came up for hearing, AB Sulu-Gambari Esq, submitted thus:
This is a motion praying this court to join Adisa Adeogun as a Defendant in this Suit… The applicant must show that the party sought to be joined as necessary party. I refer to Green Vs. Green (Sic) (1987) 2 NWLR Part 61 page 480 at page 493. Lajunmoke Vs. Doherty (1965) 1 NWLR Page 281 at page 287. I move accordingly.
Chief Oriade, for the 1st Respondent, told the court that he had no opposition to the application. However, Apampa Esq, (the counsel for the party sought to be joined) vehemently objected to the application. At the conclusion of the submissions of the learned counsel to the respective parties, the lower court reserved ruling to 25/6/93. But on the said date, the lower court merely recorded (at page 148, Record), thus:
SUIT NO: ID/339/88
…
Plaintiff absent
Defendant absent
Sokunbi for the Plaintiff.
Chief Oriade for the Defendant
Court! Ruling Read.
Motion Dismissed.
(SGD)
I. A. OLORUNNMBE
JUDGE 25/6.
Curiously, however, the copy of that ruling could not be traced in the record of appeal. On December 3, 1999, the Respondent filed in the court below an application, seeking an order for possession of the land in dispute. On October 17, 2000, the Appellant applied to be joined as party interested for the purpose of opposing the Respondent’s application for possession.
On November 19, 2002, the lower court delivered a ruling refusing the Appellant’s application. The said ruling of the lower court is to the conclusive effect as follows:
The Defendant was an Oba as per page 4, lines 24 and 25 of the judgment and he defended this action for himself and on behalf of the Olarokun family.
…
The Defendant Chief Arowolo was sued in a representative capacity for himself and on behalf of Olarokun family. The Defendant defended this action at the trial in a representative capacity. The Applicant and his wife bought their two plots of land from the Olarokun family represented by the Defendant in this action. The Applicant and his wife are therefore bound by the judgment dated the 23rd day of April 1998.
The Applicant cannot be joined as 2nd Defendant/Interested Party in this action. This application fails and is hereby dismissed. See pages 295 -304 of the Record.
Consequent thereupon, the Appellant applied for leave to appeal against the said ruling (19/11/02), which was refused by this court on 20/02/06. The Appellant appealed to the Supreme Court against that ruling.
On 19/11/02, the lower court proceeded to hear the exparte application for possession of the land in dispute. On 19/4/04, the lower court delivered a ruling, thereby granting leave to the Respondent to recover possession of the land in dispute. Consequent upon which, on 12/7/04, the lower court granted leave to the Appellant to appeal against the ruling in question.
The original notice of appeal was filed on 15/7/04. The amended Appellant’s brief of argument was filed on 27/10/10, pursuant to order of court. On the other hand, the Respondent’s brief was filed on 21/12/10.
At page 3 of the amended brief thereof, the Appellant has formulated two issues for determination, viz:
3.1 Whether the trial judge was right in granting the Plaintiff/Respondent’s exparte application for possession without requiring that the Appellant be put on notice.
3.2 Whether the trial judge was right to entertain the exparte application for possession of property in the physical possession of the Appellant and grant the order sought (order dated 19th April, 2004) when the main action was brought to establish title only without a claim for possession having been made prior to judgment.
On issue No.1, it was submitted, inter alia, that there was no claim in the main suit for declaration of title. That, the claim (relief) for possession was introduced after judgment. Nevertheless, on 19/4/04, the lower court ordered that the Respondent should recover possession from the Defendant.
It was contended, that when the possession of property in the physical possession of the Appellan
