NIGERDOCK NIGERIA PLC v. CHIEF CALEB ADERIBOLE & ORS
(2019)LCN/12551(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of January, 2019
CA/L/408/2008
RATIO
JURISDICTION: THE MEANING OF JURISDICTION
“Jurisdiction is key in any judicial process. This is the power bestowed on the Court to handle a particular matter. In FBN Ltd vs. Abraham (2008) LPELR-1281 (SC), the apex Court per Aderemi JSC at page 15 held:
‘The question may be asked: what is the meaning of jurisdiction by judicial authorities, jurisdiction is the authority by which a Court has to decide matters that are laid before it for litigation or take cognizance of matters presented in a formal way for its decision. Let it be said that the limits of this authority are by practice imposed by statute or law under which the Court is constituted. It may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited’.” PER TOBI EBIOWEI, J.C.A.
JUSTICES
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
NIGERDOCK NIGERIA PLC Appellant(s)
AND
1. CHIEF CALEB ADERIBOLE
2. Mr. M. A. O ADERIBOLE
3. CHIEF ADEBOWOLE ADERIBOLE
4. MR. OWOYELE ADERIBOLE
5. MR. SHOLA ADERIBOLE
6. MR. ADEYEMI ADERIBOLE
7. MRS. FLORENCE OLUWAFEMI OMOTOBORA (Nee Aderibole)
8. MR. APOLLO O. ADERIBOLE
9. MR. OYE M. ADERIBOLE
10. MR. ROTIMI S. ADERIBOLE
11. MR. NATHANIEL (SECRETARY) (For themselves and on behalf of the Nathaniel Family otherwise
known simply as “NANTI FAMILY”)
12. FEDERAL MINISTRY OF HOUSING. Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment):
In this appeal, the Appellant is challenging the ruling of the lower Court, that is, the Federal High Court delivered by R.N. Ukeje, Chief Judge on 23/7/07. This ruling is contained in pages 93-99 of the records. The Appellant who was the Applicant in the lower Court, brought a motion to set aside the Consent Judgment entered by the Court upon the terms of settlement dated 31/8/2000 between the parties over the subject matter which is a piece or parcel of land known as “NANTI VILLAGE” Snake Island, Apapa, Lagos State. The base for the application is that the lower Court had no jurisdiction to entertain the matter being purely a land matter. The lower Court in page 99 of the records after deciding the main issues of whether it has power to set aside a judgment on the merit and whether it had jurisdiction made the following consequential orders;
“I had, in this ruling, held in answer to the two issues raised for determination, that-
1. The Judgment complained of by the Plaintiff being a consent Judgment and a judgment on the merit cannot be revisited by this Court, with a view to reviewing or vetoing the same.
2.There being no suit or proceeding before this Court arising from the Plaintiffs’ substantive summons, herein, the issue of jurisdiction does not arise. Consequently, the entire motion fails herein and is dismissed.”
The Appellant dissatisfied with the Ruling filed a notice of appeal which contained 2 grounds of appeal as shown in pages 103-104 of the records. The Appellant’s brief was filed on 19/2/09 but deemed on 22/1/14 and on receipt of 1st-11th Respondents’ brief of argument filed on 17/9/18 deemed on 21/9/18, the Appellant filed a reply brief on 2/10/18. The appeal was heard on 7/11/18. The Appellant’s counsel, Professor O.A. Fagbohun who settled the Appellant’s brief adopted same and the reply brief on 7/11/18. The Respondent’s brief was settled and adopted by Bisi Ade-Ademuwagun Esq., on the same day. The Appellants raised two issues for determination in his brief of argument:
1. Whether a term of settlement entered as judgment without jurisdiction is liable to be set aside?
2. Whether learned trial judge was right in holding that the Court was functus officio and thus lacked jurisdiction to set aside the Consent Judgment delivered on 28th September, 2000 when the Court did not have jurisdiction abinito to enter the consent Judgment as Judgment of the Court?
Learned Counsel for the Appellant submitted that a Court can set aside a decision reached without jurisdiction as it is a nullity. He referred to Madukolu vs. Nkemdilim (1962) 1 ALL NLR 587; Rivers State Government of Nigeria vs. Specialist Konsult (2005) All FWLR (pt. 254) 875 @ 899-900; Dana Implex Limited vs. Aderotoye (2006) All FWLR (Pt. 308) 1338 @ 1346-1347. This is Counsel firm submission on issue 1.
On issue 2, Learned Counsel submitted in the negative and that the subject matter of the suit which culminates to this appeal is a land matter which is outside the jurisdiction of the Federal High Court. He referred to Okoroma vs. Uba (1999) 1 NWLR (Pt. 587) 359. While conceding that a final decision of a Court cannot generally be reopened, counsel submitted that decision reached without jurisdiction is an exception to the rule.
Learned Counsel finally urged Court to allow the appeal and set aside the Consent Judgment. Learned Counsel for the 1st-11th Respondents in the brief raised 2 issues for determination, namely;
1. Whether from the circumstance the Federal High Court has jurisdiction over the subject matter of this appeal. And if the answer to the said question is affirmative as the Respondents would contend.
2. Whether a final decision of a competent Court of jurisdiction properly arrived and by the consent of the parties can be set aside.
Addressing issue 1, 1st-11th Respondent’s counsel relying onNDIC vs. Okem Enterprises (2004) 10 NWLR (pt. 850)107 and Societe Bancaire Ltd vs. De Lluch (2004) 11-12 SC 74; Ezeanah vs. Atta (2004) 2 SC (Pt. 11) 112; Machi vs. Machi (2008) 2-3 SC (Pt. 11) 109 and Section 251(1)(q)(r) and (s) of the 1999 Constitution of the Federal Republic of Nigeria submitted that since the Appellant is a Federal Government Agency, the Federal High Court has jurisdiction over the matter. It is his further submission that since there is no specific provisions ousting the jurisdiction of the Federal High Court in land matters, it is wrong for the Appellant to have so argued. He urged Court to resolve this issue in favour of the Respondent.
On issue 2, it is Counsel submission that Consent Judgment is a judgment on the merit and can therefore operate both as issue estoppel and res judicata and such a judgment cannot be set aside. He referred to Honstead vs. Commissioner of Tazes (1962) AC 155; Honda Place vs. Globe Motors (2005) 7 SC (pt 111) 182; Race Auto vs. Akib (2006) 6 SC 1; Associated Discount vs. Amalgamated Trustee (2006) 10 NWLR (Pt. 989) 635. It is his submission that in the circumstance this judgment cannot be set aside. He urged Court to dismiss this appeal and uphold the judgment of the lower Court.
Replying, the Appellant’s Counsel in his reply brief submitted that there is nowhere in Section 230 of the 1979 Constitution or 251 of the 1999 Constitution of the Federal Republic of Nigeria that listed land matters as part of the jurisdiction of the Federal High Court. It is Counsel firm submission that the Federal High Court cannot assume jurisdiction over matters not listed in Section 251 of the Constitution. He referred to John Shoy International Limited vs. Federal Housing Authority (2017) All FWLR (Pt. 892)984 @997. It is further submitted that the mere fact that a party is a Federal Government Agency does not necessarily put the matter within the jurisdiction of the Federal High Court. He referred to Josiah Ayodele Adetayo & Ors vs. Kunle Ademola & Ors. (2010) LPELR-155 (SC).
From the grounds of appeal contained in the notice, I will distill the following issues for determination:
1.Whether the trial Court had jurisdiction to entertain the subject matter of the Consent Judgment?
2.Whether the lower Court could set aside the Consent judgment it delivered over the matter?
The real issue before this Court in this appeal is issue 1, as the answer to that issue can reasonably handle the second issue. If the lower Court had no jurisdiction to entertain the subject matter of the Consent Judgment, the whole proceeding will be a nullity and therefore can be set aside. I will return to this later in this judgment.
I will now address the main issue which is issue 1. The question is; whether the lower Court had jurisdiction to entertain the subject matter covered by the Consent judgment. The subject matter is purely a land matter between the parties. As shown in page 4 of the record of proceeding, the question before the lower Court in the main suit that led to the Consent Judgment is ownership of the parcel of land in Snake Island. That is not in dispute at all. Also not in dispute is that the matter was before the Federal High Court. It was filed in 1998. The suit was No: FHC/L/CS/813/1998. When this matter was filed in 1998, the question is, had the Federal High Court the jurisdiction to deal with land matters? If the answer is yes, the appeal is likely to fail but if the answer is no, then the appeal is likely to succeed. This therefore is the foundation or the bedrock of this appeal.
Jurisdiction is key in any judicial process. This is the power bestowed on the Court to handle a particular matter. In FBN Ltd vs. Abraham (2008) LPELR-1281 (SC), the apex Court per Aderemi JSC at page 15 held:
‘The question may be asked: what is the meaning of jurisdiction by judicial authorities, jurisdiction is the authority by which a Court has to decide matters that are laid before it for litigation or take cognizance of matters presented in a formal way for its decision. Let it be said that the limits of this authority are by practice imposed by statute or law under which the Court is constituted. It may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited’.
Similarly, in Saraki vs. FRN (2016) LPELR-40013 (SC), the Supreme Court re-emphasised this per Mohammed JSC when the apex Court held:
‘The meaning of the word jurisdiction has been accepted – as the authority which a Court or Tribunal has to decide matters presented in a formal way for its decision. Where a Court does not have jurisdiction, there is nothing before it to adjudicate. The limits of its authority as in the present case may be prescribed, as it has been prescribed by Statute under which the Court or Tribunal was created. Concisely stated, jurisdiction means the authority which a Court or Tribunal has to decide matters contested before it or to take cognizance of matters presented in a formal way for its decision as stated by this Court in National Bank vs. Shoyoye (1975) 2 SC.181. To put it in another way, a Court or Tribunal can only adjudicate on a controversy between litigants before it when it has jurisdiction to do so See KALIO v. DANIEL KALIO (1975) 2 SC. 15’.
See also Jide Aladejobi vs. NBA NSCQR Vol. 55 (2013) page 179 and Mustadrack Contracts Ltd & Ors vs. Wema Securities & Finance Plc (2018) LPELR-45279 (CA).
Without jurisdiction, no Court can delve into a matter. If a Court does that, it is like a journey into an endless pit or a journey without destination. Jurisdiction is the breath of a Court upon which it has life. The air a human being breath that gives life is what jurisdiction is to a Court. Jurisdiction is the breath of a Court. As breath or air is important for the survival of a human being so is jurisdiction, important for the survival of a Court as it relates to handling matter. It is the life wire of a Court. Anything done without it amount to a waste of valuable time and resources as the whole proceeding and the decision no matter how brilliant amounts to a nullity. In Chief of Air Staff & Ors vs. Iyen (2005) 1 SC (pt. ii) 121, the Supreme Court held:
‘A decision given by a tribunal or Court without jurisdiction is a nullity. If the State High Court gives a decision on a case which falls within the exclusive jurisdiction of the Federal High Court, that decision is null and void and cannot sustain a plea of res judicata. In the same vein, if a Magistrate tries and convicts a person for murder for which he lacks jurisdiction to try the person so convicted cannot successfully raise a plea of autrefois convict to prevent a subsequent trial before a Court vested with jurisdiction to try him’.
In Owner of the MV ‘Arabella vs. Nig. Agricultural Insurance Corporation NSCQR Vol. 34 2008, Ogbuagu, JSC, his lordship affirms the above position in these words:
‘Judgment or order by a Court without jurisdiction is a nullity. If a Court is shown to have no jurisdiction, the proceedings however well conducted, are a nullity.’
This clearly shows that if the lower Court had no jurisdiction, then the Consent Judgment will amount to a nullity and if so, the lower Court has powers to set aside such a judgment. The point I am trying to make is that, if it is true that the lower Court had no jurisdiction over land matters then the lower Court should have set aside the Consent Judgment. In Chief Emmanuel Bello vs. INEC & Ors NSCQR Vol. 41 2010-page 1314 per Mohammed JSC at pages 1339-1340 the Supreme Court held:
‘The law regarding the position of any judgment or order of Court which is a nullity for any reason whatsoever is that the Court in its inherent jurisdiction is entitled ex-debito justitiae to have that judgment or order set aside on the application of an affected or aggrieved party or even suo-motu. In other words, on the applicable procedure, the Court in exercise of its inherent jurisdiction can set aside its own judgment or order which is a nullity without necessarily resorting to appealing against that judgment or order by the affected party.’
Haven stated the position of the law above, it is now time to address the issues I have formulated for determination above. I will start with issue 1. In doing so, I will look at the appropriate provision of the law vis a vis the jurisdiction of the Federal High Court. Jurisdiction is conferred by law and statute and not by parties. See Garba vs. Mohammed & Ors (2016) LPELR- 40612 (SC); Aberuagba & Anor vs. Oyekan & Ors (2018) LPELR 43669 (CA). In Dongtoe vs. Civil Service Commission, Plateau State & Ors (2001) 9 NWLR (Pt. 717) 132, the apex Court held:
‘Jurisdiction being a statute enabling requirement, cannot be acquired or conferred on the Court by consent of the parties, or because the Court was oblivious or mistaken as to the defect in its jurisdiction – See Okotie-Eboh vs. Okotie-Eboh No.2 (1986) 1 NWLR (Pt. 16) 264.’
The Court involved here is the Federal High Court. The Statute relevant to this case that confers jurisdiction on the Federal High Court at all times relevant to this case are Federal High Court Act, 1973; Section 230 of the 1979 Constitution as amended by Decree No, 107 of 1993 (which is the Section 251(1) of the 1999 Constitution) and the Land Use Act. The Jurisdiction of the Federal High Court is contained in Section 7 of the Federal High Court Act. It is Section 7 (1) (a-s). There is no provision therein that gives jurisdiction to the Federal High Court in land matters. There is no mentioning therein that the Federal High Court has jurisdiction in land matters. At this stage a rule of interpretation comes to mind as to whether by the Federal High Court Act, the Court has jurisdiction over land matters.
The rule of interpretation is that since the Act mentioned the specific areas of the jurisdiction of the Federal High Court, what is not mentioned is excluded as the rule of interpretation is that the specific mention of one is the exclusion of the other.
It is also clear that that the Land Use Act in Sections 39 dealing with the Courts that has jurisdiction over land matters did not mention the Federal High Court but instead the State High Court. The Constitution in Section 230(1) under the 1979 Constitution of the Federal Republic of Nigeria which is in parimatrial with Section 251(1) of the 1999 Constitution in subsections a-s itemized the matters wherein the Federal High Court has exclusive jurisdiction. Similar to the provision of the Federal High Court Act, there is no provision in the Constitution that confers jurisdiction on land matters on the Federal High Court. Apart from the provision of Section 251(1) of the Constitution additional jurisdiction can be conferred on the Federal High Court by any law passed by the National Assembly. The jurisdiction of the Federal High Court is therefore determined by the Constitution and any law passed by the National Assembly.
As regards the jurisdiction of the Federal High Court and specifically on land matters, the relevant laws passed by the National Assembly are the Federal High Court Act and the Land Use Act. None of these laws confer jurisdiction on land matters on the Federal High Court. The Federal High Court from the provision of the statute does not have jurisdiction on land matters. Let us now take an excursion to the case law on whether the Federal High Court has jurisdiction on land matters. In Adetayo & Ors vs. Ademola & Ors (2010) 3-5 SC (Pt. 1) 87: (2010) LPELR- 155 (SC) pages 20-24, the apex Court held:
Close examination of the entire provisions of Section 251 of the 1999 Constitution prescribing the jurisdiction of the Federal High Court to the exclusion of all other Courts, there is nothing therein specifically conferring jurisdiction in that Court in causes or matters concerning land disputes. Although the Section also indicated that the National Assembly may confer additional jurisdiction to the Court, there is no indication that such Act of the National Assembly had been promulgated conferring additional jurisdiction to the Court to entertain causes and matters on land disputes.
If any such additional jurisdiction had been given, the most relevant statute to examine in search for it in my view, is the Land Use Act because jurisdiction of the Federal High Court to entertain land matters cannot be inferred by implication in the construction of Section 251 of the 1999 Constitution the meaning of which is quite clear and plain as no causes or matters in land dispute are mentioned therein. Since the provisions of Section 251(1)(r) of the 1999 Constitution are not helpful in tracing any jurisdiction in land matters to the Federal High Court as jurisdiction of Court is derived from statutes conferring the jurisdiction, I decided to examine the provisions of the Land Use Act 1978 which was promulgated specially and specifically to deal with the control and management of land in Nigeria. The Courts conferred with jurisdiction to entertain disputes between Nigerians in exercising their right to acquire and use land under the Act are clearly specified therein. The relevant Sections in this respect are Sections 39, 41 and 42 respectively which state :
“JURISDICTION OF HIGH COURTS AND OTHER COURTS
Jurisdiction of High Court?s: 39(1) – The High Court shall have exclusive jurisdiction in respect of the following proceedings- (a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of occupancy;
(b) proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under the Act.
(2) All laws, including Rules of Court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this Section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this Section.
41. Jurisdiction of Area Courts or Customary Courts etc. An Area Court or Customary Court or other Court of Equivalent jurisdiction in a State shall have jurisdiction in respect of proceedings in respect of a customary right of occupancy granted by a Local Government under this Act; and for the purposes of this paragraph “proceedings” includes proceedings for a declaration of title to a customary right of occupancy and all laws including Rules of Court regulating practice and procedure of such Courts shall have effect with such modifications as would enable effect to be given to this Section
42. (1) Proceedings for the recovery of rent payable in respect of any certificate of occupancy may be taken before a Magistrate’s Court of competent jurisdiction by and in the name of the Chief Land Officer or by and in the name of any other officer appointed by the Governor in that behalf .
(2) Proceedings for the recovery of rent payable in respect of any customary right of occupancy may be taken by and in the name of the Local Government concerned in the Area Court or Customary Court of equivalent jurisdiction.”
His lordship went further to hold;
‘It is quite clear from the provisions of the above Sections of the Land Use Act with specific powers and jurisdiction in respect of land matters specified therein conferred on State High Court, Area Court, Customary Court and Magistrate Court that the Federal High Court is not one of the Courts conferred with jurisdiction to entertain any dispute in land matters. Infact the purpose which Sections 39, 41 and 42 of the Land Use Act are designed to serve are very clear. While Section 39 excludes Area Courts and Customary Courts from exercising jurisdiction in respect of land the subject of statutory right of occupancy, Section 41 redefines the jurisdiction of the Courts referred to therein so as to ensure that Courts, such as the Customary Courts in Southern States of this Country which had previously been exercising concurrent jurisdiction with the High Court without distinction by classification of land, have their jurisdiction limited as stated therein.
In other words while the State High Court has exclusive jurisdiction over lands in Urban Areas by virtue of Section 39(1) of the Land Use Act, that Court shares jurisdiction with only the Area Courts and Customary Courts or other Courts of equivalent jurisdiction by virtue of both the jurisdiction of the State High Court under Section 272 of the 1999 Constitution and the jurisdiction conferred on the Area Courts and Customary Courts by virtue of Section 41 of the Act . As there is nothing in these Sections 39, 41 and 42 of the Land Use Act that conferred any jurisdiction on the Federal High Court to entertain land causes or matters, I entirely agree with the Court below that the Federal High Court has no jurisdiction to hear and determine any dispute on declaration of title to land.
This Court in FHA VS. Olayemi (2017) LPELR-43376 (CA) per Nimpar, JCA pages 83-85 held in similar terms as follows:
‘Jurisdiction is donated by the Constitution or statute and features of jurisdiction have been long settled in the case of MADUKOLU V NKEMDILIM (1962) 1 ALL NLR 587. The Federal High Court has wide powers but limited or circumscribed by the Constitution or statute unlike the State High Courts that have jurisdiction on common law issue. Section 251(1) of the 1999 Constitution clearly delimited the jurisdiction of the Federal High Court and it was reinforced by the Federal High Court Act by virtue of Section 7. The Constitution gave room for the expansion of the Federal High Court?s jurisdiction but strictly by laws made by the National Assembly. The subject matter here is land and it is not provided for in the said Section 251(1) of the 1999 Constitution nor the Federal High Court Act.
The Land Use Act is indeed a legislation that donated jurisdiction but clearly bestowed on the State High Court by Section 39 which states thus:
S.39(1): The High Court shall have exclusive original jurisdiction in respect of the following proceedings:-
a. proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of occupancy;
b. proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Act.
(2) All laws, including rules of Court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section.
The question that arises is from which section of the Constitution or Federal Act did the Court below derive its powers to determine the claim of the Respondents before it. The question of which Court has jurisdiction on land matters was settled in the case of ADETAYO & ORS V ADEMOLA & ORS (2010) 15 NWLR (PT. 1215) 169 wherein the Court held:
As there is nothing in these Section 39, 41 and 44 and 42 of the Land Use Act that conferred any jurisdiction on the Federal High Court to entertain land causes or matters, I entirely agree with the Court below that the Federal High Court has no jurisdiction to hear and determine any dispute on declaration of title to land.
See also Nkuma vs. Odili (2006) 6 NWLR (PT.977) 587; The Government of Kwara State & Ors vs. Irepodun Block Manufacturing Company & Ors (2012) LPELR-8532 (CA); Salati vs. Shehu (1986) LPELR-2986 (CA); Nigerian National Petroleum Corporation vs. Mallam Idi Zaria & Anor (2014) LPELR-22362(CA); Achebe vs. Nwosu (2003) 7 NWLR (PT. 818) 103; Adetona vs. Zenith International Bank Plc (2009) 3 NWLR (PT.1129) 577 and Pan Ocean Oil Corporation Nigeria Limited vs. Mr. Sunny Mene-Okotie (2015) LPELR-25128 (CA). The Federal High Court therefore lacks jurisdiction to entertain matters relating to title to land”
See; In Nigeria Airways Ltd (In liquidation) & Ors vs. Mahdi (2014) 11 NWLR (pt. 1417) 32 this Court held:
?Dispute between landlord and tenant are within the exclusive jurisdiction of the state Courts where the matter arise i.e. where the land is situated.
In Achebe vs. Nwosu (2002) FWLR (pt. 106) page 1000, it was held that the subject matter of the suit is what determine whether the Federal High Court has exclusive jurisdiction or not and that the Federal High Court has no jurisdiction to entertain land disputes, since it is not one of the Court listed in Section 39 and 41 of the Land Use Act. See: Omotesho vs. Abdullahi (2008) All FWLR (pt. 402) page 1114, Federal Mortgage Bank of Nigeria vs. Olloh (2002) FWLR (pt.107) page 1244.
I can go on and on in this respect but I will end here. It is clear that the Federal High Court has no jurisdiction to entertain land matters but rather the Court with jurisdiction is the State High Court. No Court is permitted to go outside its jurisdiction. The Federal High Court has no jurisdiction to entertain land matters and therefore the lower Court acted outside its jurisdiction in entertaining the matter therein. The lower Court should not have entered the Consent Judgment since it has no jurisdiction in the matter. If a Court has no jurisdiction in a matter, the Court should not make any order apart from to decline jurisdiction. In the circumstance, I resolve this issue in favour of the Appellant. I make this finding in spite of what the lower Court said in page 99 of the records. The lower Court held:
‘I therefore also resolve the second issue against the Plaintiff/ Applicant and hold that the issue of jurisdiction cannot be raised before this Court. That issue can however be raised before the Court of Appeal, should the Plaintiff/Applicant determine to take its matter before that Court.’
I do not agree that the Appellant needed to wait to raise the issue on appeal. That the issue of jurisdiction can be raised on appeal does not foreclose the Appellant from bringing a motion to set aside the order on the lower Court on the grounds of jurisdiction.
Now to issue 2. What should the lower Court have done when the motion to set aside the order was brought before it? The motion is contained in page 43 of the records. I thought it was an opportunity for the lower Court to correct the mistake it had made. It is not everyone who gets a second chance in life. This second chance is what is called repentance. The lower Court had this golden opportunity but unfortunately the lower Court did not see it like that. We need to go into the case law again to know whether in the circumstance the lower Court should have set aside its own judgment, that is, the Consent Judgment made on 23/7/07
I think, what influence, the lower Court in declining to set aside the judgment was the fact that it was a Consent Judgment. There is no law known to me that to the effect Consent Judgment cannot be set aside particularly in this circumstance when the Court had no jurisdiction to entertain the matter in the first place. That judgment is void abinitio as it is certain that no one can put something on nothing expecting it to stand. That cannot happen in real life expect in a cheap magician?s trick or some miracle as the law of gravity will always be in operation. It is trite law that in some circumstances a Court can set aside its own judgment or indeed a Court of coordinate jurisdiction without falling for the error of being a judge on appeal in its own judgment. In Enterprises Bank Ltd vs. Deaconess Florence Aroso & Ors ELC (2015) 1571 SC 1, the Supreme Court held:
In this instant, it is clear that this Court affirmed the decision of the Court below which had affirmed the award of the trial Court. This is clear in the dismissal of the respondent’s appeal. It is however, clear from the rules of Court, inherent jurisdiction of the Court and our case laws, that if the expression used in the judgment does not accurately convey the Court’s intention, the Court is entitled to make the necessary corrections. Generally, the law is that after a judgment has been given and delivered, even if it is a consent judgment entered under a mistake, the Court no longer has the power to set it aside except in the following situations, which though not exhaustive.
(a) Where there has been a clerical mistake or an error arising from an accidental slip or omission in the judgment under the slip rules;
(b) Where the judgment as drawn up does not correctly represent what the Court actually decided or intended to decide;
(c)Where the order is a nullity owing to failure to comply with an essential provision such as service of process which can be set aside by the Court which made the order and;
(d)Where a judgment or order is made against a party in default.
It is clear from the line of cases that even a Consent Judgment can be set aside by the same Court or another judge. In Race Auto Supply Co. Ltd vs. Akib (2006) 6 SC 1, it was held:
‘It must be stressed that a consent judgment may be set aside either by the Court that gave/made it or a Court of competent jurisdiction on the ground for which a contractual agreement could be voided or rescinded.’
In Vulcan Gases Ltd vs. Gesell chaff Fur Ind. & Anor NSCQR Vol. 6 (2001) 481 at 508 the apex Court per Iguh, JSC held:
‘It is long settled that a consent judgment or order made by a Court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, e.g. on the ground of a common mistake, fraudulent misrepresentation or misconception … similarly, an order; be it by consent or otherwise, which is a nullity is something which the person affected thereby is entitled to have set aside ex debito justitiae: The Court in its inherent jurisdiction has definite jurisdiction or power to set aside its own order, or decision made without jurisdiction if such order or decision is in fact a nullity and an appeal in such circumstance, cannot be said to be necessary.’
The implication of this is that a Court has powers in the right circumstance to set aside its own judgment. A situation where the lower Court acted without jurisdiction which makes the judgment whether consent or not, a nullity clearly falls within cases that such a judgment can be set aside. In this case on appeal, the lower Court having lacked jurisdiction to entertain the matter, the consent judgment is a nullity and therefore can be set aside and indeed ought to have been set aside by the lower Court. The lower Court was therefore wrong to have refused to set aside its earlier order endorsing the agreement as a Consent Judgment.
This appeal is meritorious and it is hereby allowed. The ruling of the lower Court refusing the motion to set aside its order delivered by R. N. Ukeje (OFR) CJ of the Federal High Court delivered on 23/7/2007 is hereby set aside. Parties are to bear their own cost.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother EBIOWEI TOBI, JCA just delivered with which I agree and adopt as mine. I have nothing more to add.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the Judgment as mine with nothing further to add.
Appearances:
Mumaney Esq., with him, T. Oyinlola Esq.For Appellant(s)
Obabisi Ade-Ademuwagun, Esq. for 1st -11thFor Respondent(s)
