NIGERIAN PORTS AUTHORITY v. DR. SAMA EKPO SAMA & ORS
(2019)LCN/13387(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/C/03/2017
RATIO
LOCUS STANDI: DEFINITION
Locus standi is the legal capacity to institute proceedings in Court. The concept signifies that a Court will not provide remedy for a claim in which the plaintiff has a remote, hypothetical or no interest at all. So crucial and of utmost importance is the issue of locus standi that it has attained the level of a jurisdictional status in the litigation battle field and thus can be raised at any stage of the proceedings. See ADESANYA V PRESIDENT FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358, OWODUNNI V REGD. TRUSTEE CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (pt 675) 315 and STANBIC IBTC BANK PLC V L.G.C. LTD (2018) 10 NWLR (pt 1626) 96.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
LOCUS STANDI: WHAT A PARTY MUST DO TO SHOW THAT HE HAS LOCUS STANDI
For a party to assume locus standi to institute an action, it behoves upon him to show that this civil rights and obligations alluded to in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) have been, are being or in danger of being infringed. Thus, standing will only be accorded a party who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of. See ANIBABA V BADEJO (2013) 5 NWLR (pt 1346) 42, LADEJOBI V OGUNTAYO (2004) 18 NWLR (pt 904) 149, ADENUGA V ODUMERU (2003) 8 NWLR (pt 822) 153 A.G., ADAMAWA STATE V AG, FEDERATION (2005) 18 NWLR (pt 958) 581 and YAR?ADUA V YANDOMA (2005) 4 NWLR (pt 1448) 123.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
LOCUS STANDI: WHICH DOCUMENTS SHOW THAT A PARTY HAS LOCUS STANDI
Once a plaintiff has the right or vested interest to protect and enforce legally and this has been disclosed in the Writ of summons and statement of claim and in an action commenced by originating summons, or in the depositions in an affidavit in support of the summons, the plaintiff would be adjudged to have shown interest which entitles him to sue on the subject matter. See INEC V OGBADIBO LOCAL GOVT. (2016) 3 NWLR (pt 1498) 167.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUDGMENT: DECLARATORY JUDGMENT: DEFINITION
A declaratory judgment is that which proclaim or declare existence of legal relationship and that which do not contain orders which can be enforced against the defendant. It is merely a judicial statement confirming or denying a legal right of the applicant; it does not contain any order that may be enforced against a defendant. A declaratory judgment is complete in itself since the relief is the declaration. Executory judgments/Orders, on the other hand are those that declare the respective rights of the parties and then proceed to order the defendant to act in a particular way; for example, to pay damages or refrain from interfering with the plaintiff?s right. Such an order is enforceable by execution if disobeyed. See WESTERN STEEL WORKS LTD V IRON & STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (pt 30) 617, OKOYA V SANTILLI (1990) 2 NWLR (pt 131) 172, GOVERNMENT OF GONGOLA STATE V TUKUR (1989) 4 NWLR (pt 117) 592 and LUNA V C.O.P., RIVERS STATE (2018) 11 NWLR (pt 1630 269 at 288.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUDGMENT: ONCE A COURT HAS GIVEN JUDGMENT IT BECOMES FUNCTUS OFFICIO
The general position of the law is that once a Court has delivered its decision on a matter whether obtained by consent of the parties on the matter or on its merit it becomes functus officio with regards to that matter. What it means in that a Court cannot sit as an appellate Court over its own decision, once it has decided a matter, it ceases to be seised of it, and cannot re-open it for any purpose whatsoever, save for the correction only of clerical mistakes. See UKACHUKWU V UBA (2005) 18 NWLR (pt 956)1, OGBORU V IBORI (2005) 13 NWLR (pt 942) 319, SUN INSURANCE V IMBS LTD (2005) 12 NWLR (pt 940) 608.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUDGMENT: WHETHER COURTS OF RECORD CAN SET ASIDE ITS OWN JUDGMENT
This notwithstanding, the law also says that Courts of record have the inherent jurisdiction to set aside their judgment, decisions, or orders, in appropriate cases. When for example:
1. The judgment is obtained by fraud or deceit either in the Court or by one or more of the parties,
2. The judgment is a nullity,
3. It is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it;
4. The judgment was given in the absence of jurisdiction;
5. The proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; or
6. Where there is a fundamental irregularity.
See ALAO V ACB (2000) 9 NWLR (pt 672) 264, TOMTEC (NIG) LTD V F.H.A. (2009) 16 NWLR (pt 1173) 358, KALU MARK & ANOR V GABRIEL EKE (2004) LPELR 1841 and AROSO V ENTERPRISE BANK LTD (2015) 13 NWLR (pt 1476) 306. Also in Exxon Mobil CORP. V ARCHIANGA (2018) 14 NWLR (pt. 1639) 229 at 247 248, the Supreme Court had recently held that every Court of records has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision where for instance the judgment or decision sought to be set aside is null and void ab initio or there was a fundamental defect in the procedures which vitiates and renders the same incompetent and invalid. In such a case the Court may ex-debito jusetitiae set aside its decision and may make a necessary consequential orders that the justice of each individual case demands.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
THE INTEREST OF THE COURT IS IN JUSTICE AND NOT IN TECHNICALITIES
What is uppermost in the mind of the Court is to ensure that justice is served and not have injustice enthroned in the Courts quest to maintain strict compliance to its decisions or orders. It is to abide to substantial justice wherein the Court has internal mechanisms within which such errors of judgment are rectified and remediation of an otherwise unjust scenario put in place. See ADEBIYI V ADEKANBI (2018) 16 NWLR (pt 1645 242 at 256.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
FAIR HEARING: THE EFFECT OF BREACH OF FAIR HEARING
It is settled that once it is shown that a party’s right to fair hearing guaranteed by Section 36 (6) of the 1999 Constitution (as amended) has been breached, the decision reached no matter how well considered, would be declared a nullity and is bound to be set aside. See MFA V INONGHA (2014) 4 NWLR (pt 1397) 343, TSOKWA MOTORS (NIG) LTD V UBA PLC (2008) 2 NWLR and ADIGUN V A.G., OYO STATE (1987)1 NWLR (pt 53) 678.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUDGMENT: WHETHER A COURT CAN SET ASIDE ITS OWN JUDGMENT WHICH IS A NULLITY
In ADEYEMI-BERO V LSDPC (supra), the Supreme Court had restated the already settled legal position that a person affected by the judgment of a Court which is a nullity is entitled to have the same Court set it aside ex debito justitiate. In other words, the Court in its inherent jurisdiction has the power to set aside its own judgment or order made without jurisdiction. Also where the steps taken by a Court in the course of its proceedings amount to serious procedural irregularity, the mistake or error will render the proceedings a nullity and accordingly its judgment in that respect will be of no legal effect.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
APPEAL: WHEN AN APPEAL IS NOT NEEDED
Thus, the need for an appeal to be taken in respect thereof can be dispensed with. Also in NDIGWE v NWUDE (1999) 11 NWLR 314 per ACHIKE, JSC at pages 340 341, paras E C:-
This matter of formal application to set aside an order or judgment that is a nullity negates considerably the dictum of Denning, L.J in UAC V MACFOY (supra) which suggests, rather simplistically that there is no need for an order of Court to set aside. The above dictum was openly criticized by KAYODE ESO, JSC as colourful in ALADEGBEMI V FASANMADE (1988) 3 NWLR (pt 81) 129, (1988 6 SCNJ 103 at p.125 and strongly advocated that a decision that is a nullity should have the pronouncement of the Court to that effect, and not left to be ignored by the party affected. Support for this approach has been expressed with utmost pellucidity in the judgment of DIPLOCK L. J.PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
NIGERIAN PORTS AUTHORITY Appellant(s)
AND
1. DR. SAMA EKPO SAMA
2. ATTORNEY GENERAL OF CROSS RIVER STATE
3. LAND USE AND ALLOCATION COMMITTEE, CROSS RIVER STATE
4. COMMISSIONER OF POLICE, CROSS RIVER STATE Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Cross River State sitting at Calabar delivered on 13th December, 2016 dismissing the appellant?s motion of 28/9/2012 on the ground that the appellant herein has no locus to bring the said motion. The said motion on notice was brought under the inherent jurisdiction of the Court, the appellant as an applicant before the lower Court prayed for the followings:-
1. AN ORDER granting leave to the applicant as a person/party interested in the subject matter of this suit to apply and be heard in the reliefs set out below.
2. AN ORDER of injunction restraining the plaintiff, his agents, servants, his hired Thugs, the Commissioner of Police Cross River State, men and officers of Cross River State Police Command or any person claiming through or acting on behalf of the plaintiff from evicting, threatening to evict, attempting to evict or otherwise taking steps towards the execution of warrant for possession issued by this Honourable Court on 12/9/2012 in respect of Harbour Village, Ekorinim Calabar, Cross River State
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pending the determination of this motion.
3. AN ORDER staying execution of the warrant for possession dated 12/9/2012/judgment of this Honourable Court dated 18th February, 1985 pending the determination of this motion.
4. AN ORDER setting aside the orders of this Honourable Court dated 4/9/2012 wherein the plaintiff/Respondent was granted leave by this Honourable Court to extend time for the enforcement of judgment dated 18/2/1985 and leave to apply for the Writ of Execution of judgment of this Honourable Court.
5. AN ORDER setting aside the Warrant of possession, issued by this Honourable Court in respect of the Applicant?s property situate at Harbour Village, Ekorinim, Calabar, Cross River State.
The respondents, particularly the 1st respondent denied the applicant?s claims in a counter affidavit filed on 3/12/2012 contending that due process was followed in the issuance of the warrant of possession and in the execution of the judgment of Udofia J. in suit NO C/104/84 as well as the ruling of Ikpeme J. in suit NO HC/MSC.180/2012.
?
After considering the various affidavit evidence presented by the parties together with the
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argument of learned counsel on both sides, learned trial judge in a reserved and considered ruling delivered on 13th December, 2016 dismissed the motion at page 315 of the record of appeal thus:-
?In the instant case, the present Applicant cannot bring this application because suit NO C/104/84 was determined on 18th February, 1985 when judgment was rendered therein. At the time this applicant brought this application, the course of justice open to this applicant was to appeal against the judgment in C/104/84 as an interested party.
An application to set aside execution of a judgment for any reason at all can only be made by a party in the case leading to the judgment. The present applicant was not a party in C/104/84.?
Miffed by the above, appellant appealed to this Court through a notice of appeal filed on 4/1/2017 which contains eight grounds of appeal at pages 322 ? 329 of the record of appeal.
?
At the hearing of the appeal on 11/4/19, Prof. Taiwo Osipitan, SAN on behalf of the appellant adopted and relied on the appellant?s brief of argument filed on 17/2/2017 and reply brief filed on 4/4/2019 and deemed as
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properly filed on 11/4/2019 in urging this Court to allow the appeal. Mba E. Ukweni, SAN adopted and relied on the 1st respondent?s brief filed on 13/6/2017 but deemed as properly filed on 11/4/2019 in urging this Court to dismiss the appeal.
Learned Senior Counsel for the appellant distilled four issues for the determination of this appeal as follows:
1. Whether learned trial judge rightly or wrongly held that the appellant lacks the locus standi to apply to the Court below to set aside enforcement of judgment in C/104/84 (Distilled from ground 1).
2. Whether learned trial judge right held that the appellant who is in physical possession of the property in respect of which, warrant for possession was administratively issued by the Court below can only appeal as an interested party against judgment in C/104/84 as opposed to applying to set aside warrant of possession which was administratively issued by the Court below. (Distilled from grounds 2 and 3).
3. Whether learned trial judge rightly or wrongly refused to set aside the warrant of possession which was issued administratively for the enforcement of declaratory/non-executory
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judgment in C/104/84. (Distilled from grounds 5, 6, & 8).
4. Whether having regard to the mandatory provision of Order XI Rule 5 of the Judgment Enforcement Rules and the undertaking/agreement which is at page 162 of the record of appeal, learned trial judge rightly relied on Exhibits MEV 4 & MEV 5 as proof of execution of the Warrant of Possession in respect of the property in dispute on 27/9/12. (Distilled from ground 4).
Learned Senior Counsel for the 1st respondent adopts all the four issues formulated by the appellant.
On issue No.1, learned counsel for the appellant submitted that locus standi is the legal right of a party to institute an action or file an application and to be heard by the Court. Thus a person whose civil right against forceable takeover of property or exclusion from possession of property is violated has a right to approach the Court. He referred to ATTORNEY GENERAL OF FEDERATION V ATTORNEY GENERAL OF ABIA STATE (2001) 11 NWLR (pt 725) 689 at 772 ? 773. Reliance was also placed on a book ?Locus Standi in Land Dispute? revised edition by Lawal Pedro at page 471 to the effect that
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any person with legal or equitable right or any right in land subject of dispute is a necessary party to any dispute on the land. In other words, the law recognizes the locus of a person with possessory right on landed property.
Continuing, he submitted that the appellant who was not a party to suit NO. C/104/84, but who admittedly is in occupation of the property which is the subject matter of the execution process has locus standi to challenge the warrant of possession which was administratively issued by the Court in respect of the property in dispute.
Learned counsel contended that post-judgment order extending time to enforce judgment in suit NO.C/104/84 and the issuance of the Warrant of possession as against the validity or otherwise, were the reasons for the appellant?s application before the lower Court. He therefore, submitted that the appellant who is evidently in physical possession of the disputed property at all material times has the locus standi to challenge the said post judgment enforcement order and the administratively issued warrant of possession of 12/9/2012. In aid, he relied on the following cases: OJUKWU V
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MILITARY GOV. OF LAGOS STATE (1985) 2 NWLR (pt 10) 806, UNITED NIGERIA CO. LTD V NAHMAN (2000) 9 NWLR (pt 671) 177 at 189, OKOYE V LAGOS STATE GOVT. (1990) 3 NWLR (pt 136) 115 at 125 and UDE V NWARA (1993) 2 NWLR (pt 278) 638 at 661.
It was further submitted on the appellant?s behalf that the non-hearing of the appellant in an application which its interest is directly affected was in violation of the appellant?s right to fair-hearing. And the appellant whose right to fair hearing was breached has a right to approach the Court to set aside orders made in violation of his right to fair hearing. He referred to Sections 6(6) (a), 36 (1) and 46 (1) of the 1999 Constitution (as amended) and the cases of MACHIKA V K.S.H. A. (2011) 3 NWLR (pt 1233) 15 at 47, IGWE V EZEANOCHIE (2010) 7 NWLR (pt 1192) 61 at 94, SGB (NIG) LTD V AINA (1999) 9 NWLR (pt 619) 414 at 428 and IDAKWO V EJIGA (2002) 13 NWLR (pt 783) 156 at 167 to the effect that the appellant does not need to have suffered any particular injury for him to be entitled to have a decision
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against him obtained unfairly, set aside.
On issues NO. 2 and 3 which were jointly argued, learned counsel contended that the judgment and the judgment process are two distinct issues which are separate and should be separated. Appellant?s case is that an order of possession in a judgment of the Court is a condition precedent to the issuance of warrant of possession. It is also the case of the appellant that issuance of warrant of possession is purely administrative and not judicial decision. He thus submitted that no appeal lies against administrative acts, which do not involve judicial decision or determination. He referred to ONYEKWELI V UGWU (2008) 15 NWLR (pt 1111) 545 at 558 and DIKE V ADUBA (2000)3 NWLR (pt 647) 1 at 10.
In further argument, learned counsel submitted that the learned trial judge acted without jurisdiction when he granted leave for the issuance of execution process for enforcement of declaratory judgment in suit NO C/104/84 in the absence of prior order for possession of the property in dispute. The Warrant according to the learned counsel is consequentially a nullity and a person affected
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by such warrant of possession is at liberty to apply to the Court to set aside such processes without jurisdiction. He referred to AKINFOLARIN V AKINNOLA (1994) 3 NWLR (pt 335) 659 at 677 SOCIETE GENERALE BANK (NIG) LTD V JOHN ADEBAYO ADEWUNMI (2003) 10 NWLR (pt 829) 526 at 543 ? 544 and FADA V NAOMI (2002) 4 NWLR (pt 757) 318 at 337.
It was also contended that in the light of the submission on whether it was proper to have issued a warrant of possession when there was no order for possession in judgment in suit NO C/104/84, learned trial judge ought to have decided the issues raised one way or the other and thereby failed in his judicial and constitutional duty. He referred to MARINE MANAGEMENT ASSOCIATES INC. V NATIONAL MARINE AUTHORITY (2012) 18 NWLR (pt 1333) 506 at 532, DINGYADI V INEC (2010) 18 NWLR (pt 1224)1 at 51, UKA V IROLO (1996)4 NWLR (pt 441) 218 at 235 ? 236 and NDUKA V EZENWAKU (2001) 6 NWLR (pt 709) 494 at 511 in submitting that where a trial Court fails and or neglects to make appropriate pronouncement on issues
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placed before it, this Court is empowered by Section 15 of the Court of Appeal Act to examine such issues neglected and make appropriate pronouncement on such issues.
Respecting the judgment in suit NO C/104/84, learned counsel submitted that same is declaratory judgment in which no positive order for possession of the property in dispute was requested by the 1st respondent. Likewise, no positive order for possession of the disputed property was thereby granted in favour of the 1st respondent by the Court. A declaratory and executory judgment are not the same and whereas the letter is automatically enforceable, the former requires another suit or proceedings in which orders are made for its enforcement. He referred to HO V ABUBAKAR (2011) 12 NWLR (pt 1261) 323 at 337, ?THE MT. MAKHAMBET? V I.I.I.S.A.N. (2012)2 NWLR (pt 1283 and NIGERIAN ARMY V MOWARIN (1992) 4 NWLR (pt 235) 345 at 359.
On the findings of the learned trial judge that the proper remedy for the plaintiff is to sue whoever are on the land for ejectment or recovery of possession whichever is appropriate in the circumstance,
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learned counsel argued that the above decision of the trial Court in C/104/84 is binding on the 1st respondent and both the 1st respondent and the Court are estopped from relying on the same judgment in C/104/84 without more to apply for warrant of possession. He referred to AGBOGUNLERI V DEPO (2008) 3 NWLR (pt 1074) 217 at 247, EZE V OKWEREMUO (2010) 17 NWLR (pt 1221) 53 at 78 and POLYVALENT (NIG) LTD V AKINBOTE (2010) 8 NWLR (pt 1197) 506 at 562 to contend that the doctrine of estoppels postulates that when an issue was determined between the same parties by a Court of competent jurisdiction in a final decision, none of the parties would be permitted to relitigate or re-open the same issue in later judicial proceeding.
On issue No. 4, it was the appellant?s contention that Exhibit MUE 4 which is a ruling of the lower Court of 4/9/2012 is not evidence of execution of the declaratory judgment in C/104/84 and Exhibit MEV 5 is also not a proper proof of execution of warrant for possession by the Sheriff. He submitted that there is no certificate evidencing the execution. Still in argument, learned counsel
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submitted that a certificate in the form prescribed in form N of the Rent Recovery and Control of Premises Law of Cross River State is the appropriate mode of proving execution of warrant for possession. And that there must be full and exact compliance with the prescribed form. He referred to SCHRODER V MAJOR (1989) 2 NWLR (pt 101)1 at 13.
Alternatively, learned counsel submitted that even if execution was carried out on 27/9/2012 (which was not conceded) an aggrieved person can still apply to set aside the warrant of possession that was improperly issued relying onANAEKWE V MASHASHA (2001) 12 NWLR (pt 726) 70 at 89 and F.B.N. PLC V T.S.A. IND. LTD (2010) 15 NWLR (pt 1216) 247 at 302.
He urged this Court to resolve all the four issues in favour of the appellant and to allow the appeal.
?
Arguing issues Nos. 1, 2, and 3 together, learned senior counsel for the 1st respondent made copious references to all the processes filed in suits NO. C/104/84, FHC/CA/CS/27/2006 and appeal NO. CA/E/139/89 to contend that all those exhibits reinforce the fact that the property in dispute belongs to the 1st
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respondent and that same do not support the appellant?s claim to the ownership of the said property. He therefore urged this Court to discountenance the appellant?s new argument that revolves around the disturbance of the 1st respondent?s possessory right vide the warrant of possession granted to the 1st respondent. Learned counsel submitted that by virtue of Order IV Rule 8 of the judgment Enforcement Rules, the lower Court is empowered to hear and grant the application of the 1st respondent to extend time within which to enforce the judgment in suit NO C/104/84 and to issue execution processes for the purpose of enforcing the said judgment. Thus, the warrant of possession, Exhibit AA-7 was properly issued and the execution of 27/9/2012 was duly carried out. He referred to ROSSEK V ACB LTD (1993) 8 NWLR (pt 312) 382 and KULAK TRADES & INDUSTRY PLC V THE TUG BOAT M/V JAPAUL B. (2011) 9 NWLR (pt 1251) 133 at 174 per Eko JCA (as he then was) that ?a judgment or order of every Court remains inforce and binding until it has been set aside by a Court of competent jurisdiction.”
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On the appropriateness of the issuance of Writ of possession based on the declaratory judgment, learned counsel contended that the declaration in the instant case is not a bare declaration but one that was backed up with a firm directive that the right of occupancy of the 1st respondent?s property reverse to him and he should take appropriate steps to evict any person from the said property. He submitted that the judgment in question is not declaratory simpliciter as it went on to empower the 1st respondent to take steps to evict any person found therein. He referred to the dictum of Orji Abadua JCA in HO V ABUBAKAR (2011) 12 NWLR (pt 126) 323 at 337 on the difference between declaratory and Executory judgments.
Still in argument, learned counsel submitted that the orders of a competent Court must be obeyed as long as they subsist as they remains, binding on parties until set aside by a superior Court of competent, jurisdiction relying on OSHIOMHOLE V F.G.N. (2005) 1 NWLR (pt 907) 414 at 436 ? 438.
On the appellant?s alleged breach of its right to fair hearing, learned counsel submitted that whenever there is a cry of breach
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of fair hearing as in this case, the Court usually examined the entire proceedings and the law to ascertain whether the person crying to be heard was entitled to be heard and was infact not heard. The appellant and its staff who are trespassers on the 1st respondent?s land are not entitled to be heard in the circumstances of this case; concluded learned counsel. He referred to NEPA V EZE (2001) 3 NWLR (pt 701) 606 at 619 KOTOYE V C.B.N. (1989) 7111 NLR 76 at 103 and ONAH V OKOM (2012) 8 NWLR (pt 1301) 169.
Continuing, the issue of issuing the appellant and its staff with notices to quit does not arise when there is a positive order of the Court that the 1st respondent is entitled to take steps to evict whoever is in the property, the subject matter of this suit and all what the 1st respondent needed was to apply for the issuance of writ of possession to evict the illegal occupants of his property. The appellant and its staff being trespassers do not require statutory notice to quit. He submitted that the appellant?s landlord, that is the Government of Cross River, had given them due notice to
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vacate the premises but refused to do so. Thus, any judgment against the government of Cross River State or proceedings in which it participated regarding the subject matter in this case binds the appellant. He referred to MAYA V OSHUNTOKUN (2001) FWLR (pt 81) 1777 at 1800 to the effect that the appellant and its staff are not necessary parties because they stood as privies to the necessary parties who were sued. In effect, the appellant being privy to the Government of Cross River State that wrongfully revoked the 1st respondent?s title and gave it, is a party to the case and thus bound by the result of the action. Assuming that the said judgment had not been enforced on 27/9/2012 as alluded to by the appellant, the decision of Ikpeme J., being an offshoot decision of the post judgment proceedings arising from the judgment of Udofia J., the only remedy open to appellant according to learned counsel is to seek leave as interested party to appeal against that decision in accordance with Section 243 (a) of the 1999 Constitution. He thus submitted that the ruling which is the basis of the Warrant of Possession is a judicial decision not an
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administrative decision and the appellant ought to appeal against it. The only person who has set the judgment in motion by suing or being sued can be said to be person affected concerned or involved. He referred to AKINFOLARIN V AKINNOLA (Supra).
In further argument, learned counsel referred to Order 7 of the High Court of Cross River (Civil Procedure) Rules 2008 to contend that the procedure adopted by the appellant is not the proper procedure for commencing an action as it is mandatory for proceedings to be commenced under procedure specifically provided for by law or rules of Court.
On issue No. 4, learned counsel for the 1st respondent referred to Order XI Rule 5 of the Judgment Enforcement Rules in submitting that all that is required for enforcement of the order of possession made by Udofia J., is that a writ of possession which shall be in the like form as a warrant of possession be taken out to enforce the said judgment. He further submitted that Exhibits MUE 4 and MUE 5 together with the undertaking at page 162 of the record are sufficient to show that the execution was carried out on 27/9/2012. Though the appellant found
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their way back into the property in total disregard and disobedience of the orders of Court after execution, learned counsel contended that it is unacceptable for the appellant to benefit from their wrong-doings under whatever guise. He finally urged this Court to resolve all the four issues against the appellant and to dismiss the appeal.
In his reply brief, learned counsel for the appellant submitted that the order for extension of time to enforce declaratory judgment in suit No.C/104/84 and the execution processes were granted without jurisdiction and that jurisdictional issues can be raised for the first time on appeal either by the parties or suo motu by the Court.
Continuing, he argued that for the lower Court to validly issue a warrant of possession, there must have been an order for possession granted by the lower Court in favour of the 1st respondent which then activates the issuance of a warrant/enforcement process.
?
Also for an order to be capable of being executed, it must be positive, unambiguous and direct. He submitted that Udofia J. merely declared the right of the 1st respondent and declared that the 1st respondent is entitled
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to take steps to evict any person from the property. Thus, the judgment did not direct or order the appellant to give vacant possession of the property to the 1st respondent and the appropriate steps was to commence an action for recovery of possession against the appellant who was in physical possession.
Before proceeding to resolve the issues formulated by the appellant and adopted by the 1st respondent, it is pertinent to state the facts of the case as disclosed in the record of appeal.
The 1st respondent who was the plaintiff in suit No. C/104/84 sued the Attorney General of Cross River State and the Land Use & Allocation committee, Cross River State claiming ownership of land, which was acquired by Cross River State Government vide acquisition Notice dated 3rd May, 1979. In the said suit, the 1st respondent claimed the following reliefs:-
1. ?A Declaration that the purported revocation of the plaintiff?s rights of occupancy by the NOTICE OF REVOCATION OF RIGHTS OF OCCUPANCY signed by the Military Administrator on 3rd May, 1979 and published in Cross River State of Nigeria Gazette No. 24 of 14th June, 1979 volume 12 deemed to
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exist regarding the plaintiff?s property at Ekot Inim in Calabar Municipality and covering an area of approximately 11.048 Hectares shown on Survey Plan No. CRS 859 is null and void and of no effect whatsoever in that the said notice of revocation of rights of occupancy for public interest.
i. Ultra vires the powers of the Military Administrator.
ii. Not for over-riding public interest as the property is being used for purposes other than that stated particularly in the Notice of Revocation.
iii. Capricious
iv. An abuse of power.
2. A Declaration that s.28(1) and (2) of the Land Use Act (Decree No.6 of 1978) does not apply to the plaintiff?s Certificate of Occupancy deemed to exist on all that piece or parcel of land including the developments thereon at Ekot Inim in Calabar Municipality containing an area of approximately 11.048 Hectares shown in Survey Plan No. CRS 859, since that property is for a public purpose and is in the overriding public interest to wit: Constructed to serve as a Health Farm Clinic and Resort; A Blood Bank and Central Diagnostic Laboratory.
3. An injunction to restrain the Defendants, their
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servants, agents and functionaries from interfering in anyway whatsoever with the plaintiff?s right to occupation, use and enjoyment of the said property for the purpose of Health Farm Clinic and resort; A Blood bank and Central Diagnostic Laboratory.”
?
After trial and in the judgment delivered on 18th February, 1985, Udofia J. inter alia held that the right of occupancy of the property reverts to the plaintiff who is declared entitled to take appropriate steps to evict any person from the said property and used same for his own purpose. The prayer for injunction was therefore refused. Upon a motion on notice filed on 8/8/2012, the 1st respondent sought and was granted an indulgence to apply for the issuance of execution processes for the purpose of enforcing the judgment in suit No. C/104/84. Subsequently, a warrant of possession was issued and signed at the instance of the 1st respondent. However, the appellant and the 1st respondent entered into an agreement whereby appellant?s staff were to remain in the property until 2nd October, 2012 and it was on account of the said agreement that the execution was halted. Before the expiration
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date and specifically on 2/10/2012, the appellant filed a motion on notice to set aside the leave hitherto granted to the 1st respondent for the issuance of execution processes of enforcing judgment in suit NO 104/84 as well as the warrant of possession issued in that respect. The learned trial judge refused to accede the appellant?s request and hence this appeal.
The main contention respecting issue No.1 is whether the appellant possess the legal capacity or locus standi to apply to the lower Court to set aside the enforcement of the judgment in suit No. C/104/84.
Locus standi is the legal capacity to institute proceedings in Court. The concept signifies that a Court will not provide remedy for a claim in which the plaintiff has a remote, hypothetical or no interest at all. So crucial and of utmost importance is the issue of locus standi that it has attained the level of a jurisdictional status in the litigation battle field and thus can be raised at any stage of the proceedings. See ADESANYA V ? PRESIDENT FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR 358, OWODUNNI V REGD. TRUSTEE CELESTIAL CHURCH OF CHRIST (2000) 10
22
NWLR (pt 675) 315 and STANBIC IBTC BANK PLC V L.G.C. LTD (2018) 10 NWLR (pt 1626) 96.
For a party to assume locus standi to institute an action, it behoves upon him to show that this civil rights and obligations alluded to in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) have been, are being or in danger of being infringed. Thus, standing will only be accorded a party who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected by the act complained of. See ANIBABA V BADEJO (2013) 5 NWLR (pt 1346) 42, LADEJOBI V OGUNTAYO (2004) 18 NWLR (pt 904) 149, ADENUGA V ODUMERU (2003) 8 NWLR (pt 822) 153 A.G., ADAMAWA STATE V AG, FEDERATION (2005) 18 NWLR (pt 958) 581 and YAR?ADUA V YANDOMA (2005) 4 NWLR (pt 1448) 123.
Once a plaintiff has the right or vested interest to protect and enforce legally and this has been disclosed in the Writ of summons and statement of claim and in an action commenced by originating summons, or in the depositions in an affidavit in
23
support of the summons, the plaintiff would be adjudged to have shown interest which entitles him to sue on the subject matter. See INEC V OGBADIBO LOCAL GOVT. (2016) 3 NWLR (pt 1498) 167.
The appellant in this case, commenced the action by a motion on notice supported by affidavit whereby she claimed that its possessory right to the property in dispute is being unjustly attached in satisfaction of a judgment to which she is not a party to the proceedings. In paragraphs 6 ? 18 of the affidavit in support of the said motion to set aside the orders of 4/9/2012, appellant reveals its interest in the subject matter as follows:-
6. That at all material times the properties in the Harbour Village serves as the residence of Staff of the Applicant which the Applicant allocated to them to live.
7. That the Applicant and her workers have been in physical possession of the Harbour Village before this suit was commenced.
8. That despite the physical presence of applicant and her staff on the property in dispute the plaintiff did not join them as defendants in this suit.
9. That the presence of the applicant?s and her
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workers in the Harbour Village was recognized by this Honourable Court which refused to grant an Order of injunction against the defendant on record in this suit in the Court?s Judgment.
10. That in the judgment delivered by this Honourable Court the Court merely granted declaratory orders in favour of the plaintiffs herein.
11. That the judgment of this Honourable Court delivered on 18th February, 1985 is a declaratory judgment.
12. That I was informed by Applicant?s counsel Prof. Taiwo Osipitan, SAN in a Teleconference on 27/9/2012 at about 7:30pm and I verily believe him that a declaratory judgment cannot form the basis of a Writ of Possession.
13. That I know that the plaintiff did not sue for recovery/possession of premises, the subject-matter of this suit in accordance with Rent Control/Recovery of Premises Law of Cross River State.
14. That at all material times the defendants on record were not and are still not in physical possession of the disputed property.
15. That at all material times the applicant and her staff who were and are still in physical possession of the property in dispute were not served with any
25
notice to quit the premises or seven days owner?s notice of intention to recover possession of the various flats in Harbour Village before the commencement of this suit.
16. That the applicant and her staff who occupy the premises were also not served with the originating processes in this suit and the plaintiff?s Motion on Notice filed on 8/8/2012.
17. That applicant and her staff who occupy the Harbour Village were consequently denied fair hearing by this Honourable Court which made the Order of Possession of the property.
18. That the judgment of the Court which the plaintiff sought warrant of possession on was delivered as far back as February, 1985.
In considering of the facts deposed to in the above averments, Udofia J., had in suit No. C/104/84 at page 74 of the record of appeal acknowledged the appellant?s possessory interest in the property in dispute thus:
?Also from the affidavits and counter affidavits before me which are the only source of evidence in this suit, it is agreed by both sides that the staff of the Nigerian Ports Authority are presently in occupation of the property of the plaintiff. They
26
have not been made parties to the suit. Moreover, their acts of occupation have been completed and there is no evidence that they are threatening to cause any waste or damage or further trespass upon the property of the plaintiff.?
It is clear from the above that the appellant has shown sufficient interest which entitles it to sue on the subject matter and that the chances of success of an action are not relevant consideration. I therefore cannot but agree with the submission of the learned counsel for the appellant that the eviction of a person who is admittedly in physical possession of a property against who no order for possession has been made in a judgment has both the statutory and constitutional right to challenge a warrant of possession which adversely affect him. The appellant having demonstrated and showed that it has vested interest in the property, the subject matter of the attachment in the writ of possession, had the locus standi to bring an action to protect that vested interest.
?
Issues 2, 3, and 4 deals with the right of the appellant to apply to set aside the warrant of possession granted in favour of the 1st respondent being
27
a fall out of the judgment in suit No. C/104/84. It is beyond any pre-adventure that in both suit NO. C/104/84 and motion on Notice of 8/8/2012, the appellant was not made a party. The main contention here is whether a non-party can apply to set aside a judgment and or order without being joined as a party or filing a fresh action. Learned counsel for the 1st respondent contended that the appellant is merely using legal process and executive powers unfairly and unjustly to frustrate the 1st respondent from enjoying the fruits of his judgment since 1985.
I have stated elsewhere in this judgment that the judgment of Udofia J. in suit NO. C/104/84 ignited this appeal in the sense that the 1st respondent as plaintiff therein had approached that Court and obtained declaratory order which were earlier reproduced in this judgment with a rider that he is entitled to take appropriate steps to evict any person from the said property.
?
A declaratory judgment is that which proclaim or declare existence of legal relationship and that which do not contain orders which can be enforced against the defendant. It is merely a judicial statement confirming or denying a
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legal right of the applicant; it does not contain any order that may be enforced against a defendant. A declaratory judgment is complete in itself since the relief is the declaration. Executory judgments/Orders, on the other hand are those that declare the respective rights of the parties and then proceed to order the defendant to act in a particular way; for example, to pay damages or refrain from interfering with the plaintiff?s right. Such an order is enforceable by execution if disobeyed. See WESTERN STEEL WORKS LTD V IRON & STEEL WORKERS UNION OF NIGERIA (1987) 1 NWLR (pt 30) 617, OKOYA V SANTILLI (1990) 2 NWLR (pt 131) 172, GOVERNMENT OF GONGOLA STATE V TUKUR (1989) 4 NWLR (pt 117) 592 and LUNA V C.O.P., RIVERS STATE (2018) 11 NWLR (pt 1630 269 at 288.
In the instant case, the judgment in suit NO 104/84 is by no means declaratory, notwithstanding the rider advising the 1st respondent to take further steps to evict person (s) in occupation.
?
It was the submission of the learned counsel for the 1st respondent that the judgment in suit NO C/104/84 is not a declaratory
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judgment simpliciter because it did not end by just declaring the right of the 1st respondent to the ownership of the disputed property but went on to empower him to take steps to evict any person found therein. I am not however persuaded by this wishful argument because the rights which the said judgment confers on the 1st respondent can only be enforceable by a subsequent judgment relying on the rights so declared and decreed. The said judgment in suit NO C/104/84 in my respectful view remain declaratory, notwithstanding the rider and or admonishment to the 1st respondent to take further steps towards evicting person(s) found in the property.
Having held the view that the character of the declaratory judgment in suit NO C/104/84 has not changed by bit, the next germane issue is whether the appellant is entitled to be heard in proceedings for enforcement of the said judgment and whether the 1st respondent has taken the appropriate steps towards enforcing the judgment in suit NO C/104/84?
?
I have stated that in his quest to enforce the judgment in suit NO C/104/84, 1st respondent filed a motion on notice on 8/8/2012 praying for extension of time to
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enforce judgment in suit NO C/104/84 and for leave to apply for the issuance of execution processes for the purpose of enforcing the said judgment. In the ruling delivered on 4/9/2012, Ikpeme, J., while granting the 1st respondent?s prayers at page 94 of the record of appeal said:-
?I hold therefore in this circumstance that it would be most unfair and would erode public confidence in the judiciary to continue to delay the execution of the said judgment delivered since 18th February, 1985.
Accordingly, this application is now granted by this Court and the orders are made specifically prayed in prayers and of the judgment creditor/applicant?s motion papers.?
The appellant?s contention is that an order for possession in a judgment of a Court is a condition precedent to the issuance of warrant of possession. And since the issuance of warrant of possession is not a judicial decision, there is no need to appeal against an administrative act and the appellant can safely apply by motion to set it aside. This is moreso when the learned trial judge acted without jurisdiction when he granted leave for issuance of execution
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process for enforcement of declaratory judgment in suit NO C/104/84 concluded the learned counsel.
The contention of the 1st respondent on the other hand is that there is no appeal against both the judgment in suit NO C/104/84 and the ruling of Ikpeme J., granting 1st respondent leave to apply for the warrant of possession. Thus, the appellant is not entitled to set aside the decision of a Court as a non-party. The appellant must seek leave as an interested party to appeal against that decisions which they have failed to do. Learned counsel referred to the case of BELLO V INEC (2010) 8 NWLR (pt 1196) 342 at 420.
I have held that the appellant had shown sufficient interest which entitles it to approach the lower Court to protect the subject matter that was to be enforced as a result of the judgment in suit NO 104/84 and the ruling of Ikpeme J. of 4/9/2012. I am also of the firm view that the judgment in suit NO C/104/84 is a declaratory judgment without a direct, positive and unequivocal order as to the eviction of the appellant and its staff from the property, the subject matter of litigation.
?
The general position of the law is
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that once a Court has delivered its decision on a matter whether obtained by consent of the parties on the matter or on its merit it becomes functus officio with regards to that matter. What it means in that a Court cannot sit as an appellate Court over its own decision, once it has decided a matter, it ceases to be seised of it, and cannot re-open it for any purpose whatsoever, save for the correction only of clerical mistakes. See UKACHUKWU V UBA (2005) 18 NWLR (pt 956)1, OGBORU V IBORI (2005) 13 NWLR (pt 942) 319, SUN INSURANCE V IMBS LTD (2005) 12 NWLR (pt 940) 608.
This notwithstanding, the law also says that Courts of record have the inherent jurisdiction to set aside their judgment, decisions, or orders, in appropriate cases. When for example:
1. The judgment is obtained by fraud or deceit either in the Court or by one or more of the parties,
2. The judgment is a nullity,
3. It is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it;
4. The judgment was given in the absence of jurisdiction;
5. The proceedings adopted was
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such as to deprive the decision or judgment of the character of a legitimate adjudication; or
6. Where there is a fundamental irregularity.
See ALAO V ACB (2000) 9 NWLR (pt 672) 264, TOMTEC (NIG) LTD V F.H.A. (2009) 16 NWLR (pt 1173) 358, KALU MARK & ANOR V GABRIEL EKE (2004) LPELR ? 1841 and AROSO V ENTERPRISE BANK LTD (2015) 13 NWLR (pt 1476) 306. Also in Exxon Mobil CORP. V ARCHIANGA (2018) 14 NWLR (pt. 1639) 229 at 247 ? 248, the Supreme Court had recently held that every Court of records has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision where for instance the judgment or decision sought to be set aside is null and void ab initio or there was a fundamental defect in the procedures which vitiates and renders the same incompetent and invalid. In such a case the Court may ex-debito jusetitiae set aside its decision and may make a necessary consequential orders that the justice of each individual case demands.
What is uppermost in the mind of the Court is to ensure that justice is served
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and not have injustice enthroned in the Court?s quest to maintain strict compliance to its decisions or orders. It is to abide to substantial justice wherein the Court has internal mechanisms within which such errors of judgment are rectified and remediation of an otherwise unjust scenario put in place. See ADEBIYI V ADEKANBI (2018) 16 NWLR (pt 1645 242 at 256.
The situation that played itself out in the lower Courts are that the declaratory judgment in suit NO C/104/84 contained no negative orders against the appellant and no recovery action was commenced against the appellant. Thus, there was no legal basis for the issuance of the execution processes. That being the position the ruling of Ikpeme J., granting leave to the 1st respondent to apply for the issuance of execution processes for the purpose of enforcing that declaratory judgment was ex-facie without jurisdiction. Worst still, the appellant who was in possession/occupation of the disputed property not made a party to the aforesaid decisions is directly affected by that decision. It is settled that once it is shown that a party?s right to fair hearing guaranteed by
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Section 36 (6) of the 1999 Constitution (as amended) has been breached, the decision reached no matter how well considered, would be declared a nullity and is bound to be set aside. See MFA V INONGHA (2014) 4 NWLR (pt 1397) 343, TSOKWA MOTORS (NIG) LTD V UBA PLC (2008) 2 NWLR and ADIGUN V A.G., OYO STATE (1987)1 NWLR (pt 53) 678.
The 1st respondent has contended that the appellant who was not a party to the aforesaid suits, must of necessity apply first to the Court to be joined as a party in the proceeding. I have carefully examined the facts of this appeal alongside the facts in BELLO V INEC (supra) being relied upon by the learned counsel for the 1st respondent. They are distinguishable in the sense that there is no single relief sought against PDP intherto sued as 2nd respondent in the case of BELLO V INEC, but in the ruling of Ikpeme J., the issuance of execution processes are targeted directly on the appellant herein. In ADEYEMI-BERO V LSDPC (supra), the Supreme Court had restated the already settled legal position that a person affected by the judgment of
36
a Court which is a nullity is entitled to have the same Court set it aside ex debito justitiate. In other words, the Court in its inherent jurisdiction has the power to set aside its own judgment or order made without jurisdiction. Also where the steps taken by a Court in the course of its proceedings amount to serious procedural irregularity, the mistake or error will render the proceedings a nullity and accordingly its judgment in that respect will be of no legal effect. Such were the proceedings of the lower Court before Ikpeme J., in which he gave effect to a declaratory judgment in suit NO C/104/84 in the absence a clear and unambiguous order to evict the appellant who are in physical possession of the property and without giving them hearing. The ruling of Ikpeme, J., in suit NO HC/MSC.184/2012 was no doubt given in the absence of jurisdiction and the proceedings adopted was such as to deprive it of the character of a legitimate adjudication.
In the instant case, the appellant as a party directly affected by the aforesaid ruling can move the lower Court to set aside its own decision that is a nullity without necessarily resorting to appealing against
37
the decision and the lower Court has the inherent jurisdiction to set aside the said decision.
On the appropriateness of invoking the inherent jurisdiction of the Court to set aside its own decision by a motion or application by a party/parties affected by the order, the Supreme Court said it is a matter of choice and that the very same Court that made the order can take the application or a Court of concurrent jurisdiction. Thus, the need for an appeal to be taken in respect thereof can be dispensed with. Also in NDIGWE v NWUDE (1999) 11 NWLR 314 per ACHIKE, JSC at pages 340 ? 341, paras E ? C:-
?This matter of formal application to set aside an order or judgment that is a nullity negates considerably the dictum of Denning, L.J in UAC V MACFOY (supra) which suggests, rather simplistically that there is no need for an order of Court to set aside. The above dictum was openly criticized by KAYODE ESO, JSC as colourful in ALADEGBEMI V FASANMADE (1988) 3 NWLR (pt 81) 129, (1988 6 SCNJ 103 at p.125 and strongly advocated that a decision that is a nullity should have the pronouncement of the Court to
38
that effect, and not left to be ignored by the party affected. Support for this approach has been expressed with utmost pellucidity in the judgment of DIPLOCK L. J. in Isaacs ? ROBERTSON (1984) 3 NWLR 709, where learned lord Justice expressed himself as follows:-
?The contrasting legal concepts of voidness and voidability form part of the English law of contract. They are inapplicable to orders made by a Court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the Court that made it upon application to that Court; if it is regular it can only be set aside by an appellate Court upon appeal if there is one to which an appeal lies to.?
In other words, it is misleading to think that there are orders of Court which are void in the sense that they can be ignored at will by persons to whom they are directed. On the contrary, the true position is that there are orders of a Court, which strictly speaking are a nullity and which persons to whom they are addressed are entitled to apply to have set aside ex debito justitiate in the
39
exercise of the inherent jurisdiction of the Court.?
Now applying the above principle, the appellant herein, do not require any leave to appeal as interested party against the ruling of Ikpeme, J. before moving that Court to set aside its decision and or order which was evidently made without jurisdiction. And also the procedure adopted by the appellant was a proper procedure to set aside judgment or orders given without jurisdiction.
Finally, issue No. 4, deals with the efficacy of the warrant of possession and whether or not same was duly carried out vide Exhibits MEU ? 4 & 5. Learned counsel for the 1st respondent argued strenuously that by the combined effect of Exhibits MEU 4 & MEU 5 as well as the undertaking given by the appellant, there is sufficient evidence to show that the execution was carried out on 27/9/2012. However, the appellant argued otherwise contending that exhibits MEU 4 & 5 only show that there was an attempted execution by the 1st respondent. And that Exhibit MEU 5 is not in accordance with the prescribed format of proof of execution of warrant of possession. But having resolved issues No.1 ? 3
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in favour of the appellant to the effect that the appellant has the locus standi to apply to set aside the orders of 4/9/2012 and that the warrant of possession issued was without jurisdiction; it would amount to an exercise in futility for me to proceed and consider the propriety or otherwise of the proof of execution of the said warrant of possession.
In the final analysis, I hold that the appeal is meritorious, I allow same. The ruling of Honourable Justice Eyo Ita in Suit NO HC/MSC.219/2012 delivered on 13/12/2016 is hereby set aside. On the other hand, the proceedings before Ikpeme J., in suit NO HC/MSC.180/2012 is accordingly struck out for lack of jurisdiction.
Parties shall bear their respective costs.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance a copy of the judgment just delivered by my learned brother, MUHAMMED LAWAL SHUAIBU, JCA and I agree with the reasoning and conclusion arrived in the lead judgment.
?I wish to add my words to the succinct judgment and to say that a declaratory judgment is one that merely
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declares the state of affairs or rights of the parties without an order for enforcement or how the declared right can be reclaimed or enjoyed, it was explained in the case of CELTEL NIGERA V ECONET WIRELESS LTD (2014) LPELR- 22430(CA) in the following manner:
A declaration or a declaratory award or declaratory judgment establishes the rights and other legal relations of the parties without providing for or ordering enforcement (see Black’s Law Dictionary (Eighth Edition) 859). A case in point is the supreme Court case of Iragbiji v. Oyewinle (2013) 13 NWLR (Pt.1372) 566 at S80 where Rhodes-Vivour, J.S.C. held in the lead judgment that – “A declaratory judgment or order is one that proclaims or declares the existence of a legal relationship, but does not contain any order which may be enforced against the defendant. Once rights declared in a declaratory judgment are infringed, fresh proceedings are needed for enforcement. Declaratory judgment cannot be enforced by execution as there is nothing to enforce.”
On the other hand, an executory judgment is one which declares the respective rights of the parties and then proceed to order the
42
defendant to act in a particular way; for example to pay damages or refrain from interfering with the plaintiffs rights and that such order is enforceable by execution if disobeyed, see CARRENA & ORS V AKINLASE & ORS (2008) LPELR-833(SC).
The judgment which formed the basis of the warrant of possession was a mere declaratory judgment and the warrant was issued without basis whatsoever that is even when the judgment clearly stated that appropriate steps should be taken to enforcing the judgment. Furthermore, as clearly made in the lead judgment, where jurisdiction is lacking, the foundation is gone and nothing can stand. A judgment cannot be executed against a person who was not a party and was not given a hearing; that is a fundamental breach that nullifies the judgment. The question of the Appellant having been represented by a proxy cannot arise. Fair hearing must be given to each person in his own right. The judgment was not obtained against the defendants therein in a representative capacity so as to cover the Appellants herein.
?I also agree that the warrant of possession issued without a prior order for possession cannot stand. The
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judgment that gave rise to the said warrant must also go for want of jurisdiction.
?
The appeal is meritorious and I also allow it. I abide by other orders made in the lead judgment.
?
?
?
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Appearances:
Prof. Taiwo Osipitan, SAN with him, Ayodeji Awobiyide and Horace Bale Teedu
For Appellant(s)
Mba E. Ukweni, SAN with him, E. J. Amatey for 1st Respondent.
Angela Obi (SSCI MOJ Calabar) for 2nd-4th RespondentsFor Respondent(s)
Appearances
Prof. Taiwo Osipitan, SAN with him, Ayodeji Awobiyide and Horace Bale TeeduFor Appellant
AND
Mba E. Ukweni, SAN with him, E. J. Amatey for 1st Respondent.
Angela Obi (SSCI MOJ Calabar) for 2nd-4th RespondentsFor Respondent
