PITTI v. AUDU & ORS (2020)

PITTI v. AUDU & ORS

(2020)LCN/15177(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Tuesday, January 07, 2020

CA/YL/42/2018

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

JAURO DOVO PITTI APPELANT(S)

And

1. MALLAM SANI AUDU 2. NASIRU UMARU KACHALLA 3. SALIHU UMARU KACHALLA RESPONDENT(S)

RATIO

THE EFFECT OF SETTING ASIDE OR STRIKING OUT A DECISION

The effect of setting aside or striking out a decision is as good as the judgment not being in existence. In WILLIAM UDE & ORS VS. JOSIAH AGU & ORS (1961) LPELR – 25126 (SC) P. 6, PARAS. D – E, BRETT, JSC held thus:
“If a judgment is merely set aside and no further order is made, the position is as if the Court of first instance had given no judgment at all.”
See, OKOYE VS. NIGERIA CONST. & FURNITURE CO. LTD. (1991) 6 NWLR (PT. 199) 501 at 539, BELLO VS. INEC (2010) 8 NWLR (PT. 1196) 342, AJIBOYE VS. ISHOLA (2006) 13 NWLR (PT. 998) 628, OYENEYIN VS. AKINKUGBE (2010) 4 NWLR (PT. 1184) 265, MUSTAPHA VS. GOVERNOR OF LAGOS STATE & ORS (1987) LPELR – 1931 (SC) 94, PARAS. E – F and INEGBEBOH VS. OKPERE & ANOR (2018) LPELR – 45002 (CA) P. 13, PARAS. A – B. PER UWA, J.C.A.

THE EFFECT OF AN ORDER STRIKING OUT A CLAIM

I hold that an order striking out a claim, keeps the claim alive whereas a “dismissal” terminates an action. It is therefore wrong to interpret the words “set aside” and “struck out” as used by this Court in CA/YL/47/2014 to mean a dismissal of the claim which resulted in the trial Court holding that the claim of the appellant is incompetent, such view is erroneous. I hold that the learned counsel to the Respondents had erroneously argued that the “setting aside” and “striking out” order used by this Court meant a dismissal since the Court did not categorically state that it was a nullity, it need not be stated, the effect is a nullity. See, alsoFAGUNWA & ANOR VS. ADIBI & ORS (2004) LPELR – 1229 (SC) PP. 13 – 14, PARAS. F – B, IBRAHIM VS. OJONYE (2004) LPELR – 3737 (CA) PP. 23 – 27, PARAS. D – E, BAUHAUS INT’L LTD. & ANOR VS. MIDFIELD INVESTMENT LTD. (2008) LPELR – 3860 (CA), P. 20, PARAS. D – E and PDP & ORS VS. EZE ONWUKA & ANOR (2017) (SC) PP. 95 – 97, PARAS. F – D. PER UWA, J.C.A.

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the Ruling of the Taraba State High Court (hereafter referred to as the trial Court) in which the Appellant was the Plaintiff and the Respondents were the Defendants. At the trial Court, the Appellant claimed against the Respondents jointly and severally as follows:
1. “AN ORDER of the Honourable Court declaring title to the land in dispute in favour of the Plaintiff.
2. AN ORDER of declaration that the Defendants are trespassers on the Plaintiff’s land by their acts of entry, cultivation by themselves and others whom they gave to farm and planting on same without permission from the Plaintiff.
3. AN ORDER of perpetual injunction restraining the Defendants by themselves, their privies, assigns, heirs, successors or any person laying claim to the land in dispute through them from further acts of trespass.
4. The sum of N5,000,000.00 general damages against the Defendants for trespass.
5. Costs of prosecution of this suit.”

The Respondents entered a conditional appearance and also filed a notice of preliminary objection on the grounds that:
1. The Plaintiff’s suit is incompetent same having no live and sustainable issues to be determined by the Court.
2. That the Court lacks the jurisdiction to entertain the plaintiff’s suit.

At the close of hearing the preliminary objection, the trial Court upheld same and struck out the Appellant’s suit holding that same is incompetent.

The background facts on the part of the Appellant are that the farm land, subject matter of this appeal had been litigated upon in which one Kachalla Umaru Sembe, now deceased, with twenty one others sued Alhaji Abubakar Ibrahim over title to the land in suit No. TRSJ/1/1997. One Mading Ajiya (5th Plaintiff), stood in for the Appellant. Judgment was given in favour of the twenty two farm owners. It was made out that the land in dispute in this appeal forms part of the land litigated upon in the previous suit in which Mading Ajiya stood in for the Appellant as the 5th Plaintiff. Aggrieved by the decision of the Court, the then defendant (Alhaji Abubakar Ibrahim) appealed against the decision in suit No. TRSJ/1/1997. Before the appeal was heard, Alhaji Abubakar Ibrahim and the twenty two farm owners (then Respondents) settled out of Court, the appeal was withdrawn and struck out. The Memorandum of Settlement is at pages 139–140 of the printed records of appeal. Each of the farm owners took possession of their various portions of farmland which they subsequently continued farming on. It was alleged that the Respondents and their father Kachalla Umaru Sembe trespassed on the portion of land litigated upon by the 5th Respondent on behalf of the Appellant herein and farmed on part of it and gave out portions to people to farm on. The Appellant took out an action against the Respondents and their father (now deceased), before the Taraba State High Court in suit No. TRSJ/106/2011 in which judgment was entered in favour of the Appellant on the 15th of November, 2013. The Respondents appealed against the decision in Appeal No. CA/YL/47/2014. This Court allowed same, set aside the decision of the trial Court of 15/11/2013 and in its place entered judgment striking out the claim before the trial Court for the reason that the judgment of the trial Court was delivered outside the Ninety (90) days Constitutional period without any explanation and consequently lost sight of the facts of the matter before him.

As a result of the decision in Appeal No. CA/YL/47/2014 of 30/5/16, the Appellant commenced a fresh action before the Taraba State High Court in suit No. TRSJ/14/2017, in which the reliefs earlier reproduced in this judgment were sought. In response, the Respondents filed a notice of preliminary objection. The trial Court after hearing the preliminary objection upheld same and struck out the Appellant’s suit for being incompetent. Dissatisfied with the decision of the trial Court, the Appellant appealed to this Court.

Two issues were formulated for the determination of the Appeal thus:
1. “Whether the learned trial Judge was right in law when he struck out the Appellant’s claim before him holding that the words “set aside” and “struck out” as used by the Court of Appeal (this Court) in Appeal No. CA/YL/47/2014 meant dismissal as the Court of Appeal did not categorically state anywhere in its judgment that the decision in suit No. TRSJ/106/2011 is a nullity – (Grounds 1, 2 and 3).
2. Whether the learned trial Judge was right in law when he did not consider and have regard to the address/submissions of the Appellant in the application before him on the issue of the order of nullity of the proceedings as decided by the Court of Appeal (this Court) in Appeal No. CA/YL/47/2014 before arriving at a decision striking out suit No. TRSJ/14/2017” – (Ground 4).

In response, the Respondents filed a Respondents’ Notice contending that the decision of the High Court of Taraba State in suit No. TRSJ/14/2017 of 27th April, 2017 delivered by I.M. Sambo, J. be affirmed on grounds other than those relied on by the trial Court.

The grounds upon which the Respondents relied upon are as follows:
1. “The Appellant as plaintiff at the trial High Court is stopped from re-opening and re-litigating on the farm land subject matter of dispute in suit number TRSJ/1/97, having stood by during the proceedings and judgment in the said suit.
2. The Appellant’s suit No. TRSJ/14/2017 between: Jauro Dovo Pitti and 1. UMARU KACHALLA SEMBE 2. MALLAM SANI AUDU 3. NASIRU UMARU KACHALLA 4. SALIHU UMARU at the trial High Court is academic in nature.”

The Respondents adopted the issues distilled by the Appellant for the determination of the Appeal and further submitted the following two issues for the resolution of the Respondents’ Notice thus:
1. “Whether in view of the facts and circumstance of this case, the Appellant is stopped from re-opening and re-litigating on the land subject matter of dispute in suit No. TRSJ/1/1997.
2. Whether having regard to the Court of Appeal Judgment in Appeal No. CA/YL/47/2014, the Appellant’s case in suit No. TRSJ/14/2017 has been rendered academic and liable to be struck out by the trial High Court.”

In arguing the appeal, the learned counsel to the Appellant G.T. Ieave Esq. adopted and relied on the Appellant’s brief of argument filed on 17/12/2018 in urging us to resolve the issues in favour of the Appellant, allowing the appeal, set aside the decision of the trial High Court and order that the matter be retried by another Court. In arguing his first issue, it was submitted that the Notice of preliminary objection of the Respondents before the trial Court against suit No. TRSJ/14/2017 which was upheld by the trial Court striking out the suit was based on two grounds:
1. That the Appellant’s suit was incompetent as same has no live sustainable issues to be determined by the Court.
2. That the Court lacks the jurisdiction to entertain the Appellant’s suit.

The preliminary objection was predicated on the fact that this Court having allowed the appeal before it in Appeal No. CA/47/2014 against the decision of the Taraba State High Court in suit No. TRSJ/106/2011, the matter had come to an end and not to be litigated upon again. It was argued that a decision set aside by any Court under the provisions of Section 294(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) thereafter referred to as the Constitution) renders such judgment a nullity. See, OWOYEMI VS. ADEKOYA & ORS (2003) LPELR – 2858 (SC) PAGE 33, PARAS. A – E. Further, that a decision of any Court delivered outside ninety days after hearing and addresses of parties is a nullity if the Appellate Court finds that such decision has occasioned a miscarriage of justice. We were urged to declare the decision in suit No. TRSJ/106/2011 a nullity under Section 294(5) of the Constitution. Further, that proceedings declared a nullity is deemed not to have been conducted in the first place. See, YAR’ADUA VS. YANDAMA (2015) ALL FWLR (PT. 770) 1215 at 1261, PARAS. E – F, GANIYU VS. STATE (2013) ALL FWLR (PT. 688) 926 at 932, PARAS. E – F, UDE & ORS VS. AGU & ORS (1961) LPELR – 25126 (SC) PG. 6, PARAS. D – E and ABDULLAHI VS. HEDIMA (2011) ALL FWLR (PT. 564) 125 at 142, PARA. B.

In arguing the appellant’s second issue, it was submitted that the Appellant in response to the Notice of preliminary objection of the Respondents filed a counter affidavit supported by a written address where the appellant raised a single issue for determination by the Court regarding the nullity or otherwise of the decision of the Court of Appeal in Appeal No. CA/YL/47/2014. It was made out that the Appellant’s suit was struck out without the Court considering the address of the learned counsel to the Appellant. It was submitted that Courts are enjoined to consider and pronounce on every issue properly raised and placed before it. See, OVUNWO VS. WOKO (2011) ALL FWLR (PT. 587) at 612, PARAS. E – F and UZUDA VS. EBIGAH (2009) VOL. 177 LRCN 52 at 71, PARAS. P – EE. It was argued that the Appellant’s issue before the trial Court in suit No. TRSJ/14/2017 was not hypothetical or academic but, a legal issue for resolution.

In response, the learned counsel to the respondents, E.N. Chia Esq. adopted and relied on his brief of argument filed on 4/4/19 deemed properly filed and served on 11/6/19, as his argument in the main appeal and his Respondents’ Notice. It was noted that the Appellant did not respond to the Respondents’ Notice. The Respondents adopted the issues as formulated by the Appellant in respect of the main appeal and also adopted the argument in respect of the Respondents’ Notice as argued in their brief of argument. In arguing their first issue, it was submitted that the Court of Appeal in Appeal No. CA/YL/47/2014 did not merely set aside the decision of the trial High Court for being a nullity but, also proceeded to enter judgment in its place by striking out the claims of the Appellant before the trial Court which is justified. See, H.N.O. AWOYEGBE & ANOR VS. CHIEF J.E. OGBZIDE (1988) LPELR 663 (SC) PAGES 31 – 32, PARAS. G – C. Further, that the claim of the Appellant having been struck out, the Appellant was only entitled to filing a fresh suit on the same subject matter, after correcting the defect which resulted in the striking out order by the Court of Appeal. See, ALOR VS. NGENE (2007) ALL FWLR (PT. 362) PAGE 1836 at 1548 PARAS. F – G.

It was further submitted that in Appeal No. CA/YL/47/2014, the appellant’s case was struck out on the basis of the Appellant standing by, therefore the Appellant was barred from re-opening and re-litigating the issues again. See, LAWAL VS. SALAMI & ANOR (2001) LPELR – 9915 (CA) PAGE 49 – 50, PARAS. F – A. It was concluded on this issue, that the striking out order is final. Further, that the submission of the learned counsel to the Appellant that his argument at the trial Court was only considered in a paragraph, page 330, lines 15 – 23 of the record is misleading. It was submitted that the trial Court carefully analyzed the submissions of the learned counsel to the appellant on his lone issue from pages 329 – 330 of the printed records. Further, that the learned counsel to the Appellant who argued to the contrary is misleading and it should be dismissed.

The learned counsel to the Respondents submitted that the Respondents’ Notice is based on two grounds from which the following two issues were formulated thus:
1. Whether in view of the facts and circumstance of this case, the Appellant is stopped from re-opening and re-litigating on the land subject matter of dispute in suit No. TRSJ/1/97.
2. Whether having regard to the Court of Appeal Judgment in Appeal No. CA/YL/47/2014, the Appellant’s case in suit No. TRSJ/14/2017 has been rendered academic and liable to be struck out by the trial High Court.

The two issues were argued together. It was submitted that the piece of land claimed by the Appellant in suit No. TRSJ/106/2011 is the same as the land claimed by him in suit No. TRSJ/14/17 now on appeal and the parties in the two suits are the same. Further, that the portion of land now claimed by the Appellant forms part of the land declared in favour of the plaintiffs in suit No. TRSJ/1/97. Reference was made to paragraph 5 in suit No. TRSJ/106/2011 and TRSJ/14/17 at pages 296 and 304 of the records. It was argued that the fact which constituted the cause of action in the two suits are the same. Similarly, paragraphs 7, 22, 23, 24 and 25 of the statement of claim in the two suits. Reference was made to paragraphs 296 and 298 – 299 in respect of suit No. TRSJ/14/17 and pages 305 and 307 of the record of appeal in suit No. TRSJ/106/2011. It was argued that issues that have been resolved by a Court of competent jurisdiction constituted issue estoppel and cannot be re-opened in a subsequent case. See, JOSEPH AKOLE & ORS VS. ALONGE & 1; (2009) ALL FWLR (PT. 468) 295 at 300, RATIO 3; NIGERIAN AIR FORCE VS. AKUKALLA (2008) ALL FWLR (PT. 441) PAGE 967 at 971, RATIO 3.

It was submitted that the facts which formed the fulcrum of the Appellant’s claim before the trial Court was resolved by this Court as live issues, therefore the trial Court had no option than to follow the decision of the Court of Appeal and striking out the Appellant’s case. See, UNIVERSITY OF LAGOS VS. OLANIYAN (1985) 16 NSCC (PT. 1) PAGE 98 at 106, PARA. 15. It was argued that the trial Court would have embarked on an academic exercise if it had gone into the trial of issues already resolved by the Court of Appeal. See, ODEDO VS. INEC (2007) ALL FWLR (PT. 392) PAGE 1907 at 1909, RATIO 1. It was concluded that the Appellant’s suit had no live issues to be tried as all the issues had been resolved by this Court, in Appeal No: CA/YL/47/2014.

I would utilize the issues as formulated by the Appellant adopted by the Respondents in the determination of the appeal. In respect of the first issue, the Court of Appeal in Appeal No: CA/YL/47/2014 against the decision in suit No. TRSJ/106/2011, held that all questions or issues in the matter were disposed of under Section 294 (1) and (5) of the 1999 Constitution of the Federal Republic of Nigeria (hereafter referred to as the Constitution). It is therefore apt at this juncture to reproduce the above provision:
294(1): “Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

(5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this Section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
From the above provision, a decision of any Court delivered outside the ninety days (90) after hearing and addresses of parties is a nullity only if the appellate Court finds that such decision occasioned a miscarriage of justice. The learned counsel to the Respondent had argued that with the decision of the Court of Appeal in Appeal No. CA/YL/47/2014 which was resolved in the affirmative in respect of issue one in that appeal, the appellant could no longer institute another matter in respect of the same subject matter or revive the same matter by any means. In the said appeal, issue one was whether having regard to the provisions of Section 294 (1) of the Constitution as amended, the judgment of the trial Court delivered well over ninety days was a nullity? This Court in determining the said issue one resolved same in the affirmative, page 169, paragraphs 1 – 4 and page 182, paragraphs 5 – 8 of the record of appeal respectively. In other words, the judgment was declared a nullity. Similarly, the orders of the trial Court were also declared a nullity in resolution of issues 3 and 4 in the appeal, page 202, paragraphs 10 – 12 of the records of appeal. The effect of the resolution of issue one in Appeal No. CA/YL/47/2014 in the affirmative is that the decision in suit No. TRSJ/106/2011 that gave rise to the Appeal is a nullity contrary to the finding of the trial Court that this Court did not categorically state so. The question that arises is: what is the effect of a proceeding that has been declared a nullity? In the eyes of the law a proceeding that is declared a nullity by a Court of law is seen as not having existed at all, it is as if nothing happened, a void act. The Court of Appeal declared as a nullity the order of the trial Court made outside the claim of the then Respondent.

This Court in the appeal “set aside” the judgment of the trial Court and in its place “struck out” the claim in suit No. TRSJ/106/2011. The trial Court in its Ruling leading to this appeal had held that the effect of “setting aside” by the appellate Court means a dismissal. At page 331 of the records of appeal, the trial Court held thus:
“The expression “set aside” as used by the appellate Court means dismissed. Thus a judgment set aside has not the legal capacity to resurface for a trial. By the order of setting aside the issues canvassed in that Court are dead as far as the Court is concerned and only an appellate Court can resuscitate the judgment.”
In my humble but firm view, the above finding is erroneous. A decision that is set aside is non-existent; it is as if no decision has been taken. The Court of Appeal “struck out” the claim. It cannot be deemed to have been dismissed as held by the trial Court. The effect of the striking out is as if there was no claim at all. The trial Court was wrong to have interpreted “setting aside” and “struck out” as a dismissal of the claim from the decision of the appellate Court not having specifically stated in its judgment that suit No. TRSJ/106/2011 is a nullity. The trial Court was wrong to have struck out the Appellant’s suit for being incompetent. The effect of setting aside or striking out a decision is as good as the judgment not being in existence. In WILLIAM UDE & ORS VS. JOSIAH AGU & ORS (1961) LPELR – 25126 (SC) P. 6, PARAS. D – E, BRETT, JSC held thus:
“If a judgment is merely set aside and no further order is made, the position is as if the Court of first instance had given no judgment at all.”
See, OKOYE VS. NIGERIA CONST. & FURNITURE CO. LTD. (1991) 6 NWLR (PT. 199) 501 at 539, BELLO VS. INEC (2010) 8 NWLR (PT. 1196) 342, AJIBOYE VS. ISHOLA (2006) 13 NWLR (PT. 998) 628, OYENEYIN VS. AKINKUGBE (2010) 4 NWLR (PT. 1184) 265, MUSTAPHA VS. GOVERNOR OF LAGOS STATE & ORS (1987) LPELR – 1931 (SC) 94, PARAS. E – F and INEGBEBOH VS. OKPERE & ANOR (2018) LPELR – 45002 (CA) P. 13, PARAS. A – B.
On the effect of “striking out” of the claim before the trial Court in suit No. TRSJ/106/2011 by the Court of Appeal, it does not finally determine the respective rights of the parties in the action nor does it adjudicate ultimate rights of the parties in the dispute before the trial Court for determination. In such a case, the claims or rights of the parties have not been examined or looked into by the Court and appropriate findings made resulting in a determination. The claims or rights remain pending and can be revived by any of the parties in any Court of concurrent jurisdiction or the same Court. Where as in this case, the claim was struck out, it affords the plaintiff an opportunity of filing a fresh action on the same facts if he desires. It does not have the effect of a dismissal as held by the trial Court in its Ruling that gave rise to this appeal and as argued by the learned counsel to the Respondents. See, CHIEF ETETE S. OWOH & ORS VS. CHIEF KINGSTON U. ASUK & ANOR (2008) LPELR – 2853 (SC) PP. 17 – 18, PARAS. F – C; PANALPINA WORLD TRANSPORT (NIG) LTD VS. J.B. OLANDEEN INTERNATIONAL & ORS (2010) LPELR – 2902 (SC) PP. 23 – 24, PARAS. A – B, NIGERIA AIRWAYS LTD. VS. LAPITE (1990) LPELR – 1998 (SC) PP. 16 – 17, PARAS. E – B and ALOR & ANOR VS. NGENE & ORS (2007) LPELR – 431 (SC) P. 16, PARAS. C – E.

The Appellant’s issue two alleged that the trial Court did not consider the issue of the order of nullity of the proceedings as decided by the Court of Appeal in Appeal No. CA/YL/47/2014 before arriving at its decision striking out suit No. TRSJ/14/2017. This issue has been determined in the resolution of issue one, that is the effect of the Court of Appeal affirming the issue of the nullity of the proceedings of the trial Court in the previous proceedings. Resolving the same issue once again under issue two would be repetitive. In respect of the decision in resolution of issue one, issue two has been resolved therein to the effect that a proceeding or decision set aside is a nullity and has not finally determined the issue in controversy. Issue two is also resolved in favour of the Appellant.

The two issues having been resolved in favour of the Appellant, there would be no need to look into the Respondents’ Notice which sought to affirm the Ruling of the trial Court on some other grounds other than those utilized by the trial Court. The Respondents’ Notice is therefore discountenanced.

In sum, the appeal succeeds, same is allowed. The Ruling of the trial Court in suit No. TRSJ/14/2017 delivered on 27th April, 2017 is hereby set aside. The same suit is remitted back to the Chief Judge of Taraba State for trial de novo by a judge of the High Court of Taraba State other than I.M. Sambo, J. I award costs of N50,000.00 (Fifty Thousand Naira) in favour of the Appellant.

JAMES SHEHU ABIRIYI, J.C.A.: I agree.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

G.T. Ieave Esq. For Appellant(s)

E.N. Chia Esq. For Respondent(s)