LEGALPEDIA ELECTRONIC CITATION: LER[2019]CA/L/110/2016

AREAS OF LAW:

Appeal, Court, Estoppel, Judgment And Order, Land Law, Practice And Procedure, Res Judicata

SUMMARY OF FACTS:

The Claimants/Appellants at the High Court of Lagos State, claimed the following reliefs; a declaration that the Claimants’ predecessors in title are the original owners of the entire Gberigbe Orelade Village in Ikorodu Local Government Area, Lagos State; N5, 000,000.00 (Five Million Naira) being damages for trespass committed by the Defendants to the Claimants said parcel of land among others. Upon the service of the Originating processes on them, and filing of their Statement of Defense, the Defendants/Respondents filed a Notice of Preliminary Objection, seeking for an order striking out the Appellants’ suit for want of jurisdiction and being an abuse of Court process, as it had been determined in another suit. The learned trial judge heard argument on the preliminary objection, and held that the parties in this suit are the same in the concluded suit and further gave direction that the parties file additional written addresses on the effect of a higher court declaring a lower court’s judgment a nullity and the effect of setting aside a judgment for lack of jurisdiction. The parties did as directed, and the lower court, in its ruling, sustained the objection. Dissatisfied, the Appellants filed this appeal contending that the trial judge misunderstood the approach taken because the decision of the Court of Appeal No. Ca/L/360/2011- Chief J. Oluderu & Ors . vs. Chief M. Mayan & Ors(Exhibit MKO2) did not determine the issues in the appeal but merely dealt with the competence of signing of court process in the name of a Firm.

HELD:

Appeal Allowed

ISSUES FOR DETERMINATION:

• Whether the decision of the Court of Appeal in Suit No. CA/L/360/2011: CHIEF J. OLUDERU & ORS. Vs. CHIEF M. MAYAN & ORS which decision was based on the Supreme Court decision of OKAFOR Vs. NWEKE (2007) 3 S.C. Pt. 11 at 55 constitutes an abuse of court process against the subject matter of this appeal.”
• Whether the learned trial judge, Hon. Justice M.A. Savage was right in striking out the suit for abuse of court process?

RATIONES:

SIGNING OF ORIGINATING PROCESS – STATUS OF AN ORIGINATING PROCESS SIGNED BY A LAW FIRM

“In line with the settled position of the law and decision of the Supreme Court in Okafor vs. Nweke (Supra) at the relevant time, this Court, per Ikyegh, JCA, at pages 13 to 15 of the judgment held as follows,:

The originating processes in the action at the court below (the application for writ of summons and statement of claim) having been signed by a law firm, not by an identifiable legal practitioner, are incompetent and the proceedings of the court below leading to judgment in the case built on the incompetent processes are equally incompetent and a nullity and must be set aside… I would allow the appeal on this issue and set aside the originating processes and the proceedings of the court below for being incompetent and a nullity. The judgment of the court below is set aside for lack of jurisdiction….”

• PER T. ABUBAKAR, J.C.A.

NULL JUDGMENT- WHETHER A NULL JUDGMENT CAN BE THE BASIS OF A VALID DECISION

“The settled position of the law, as within the limits of my humble understanding, as is often cited in Macfoy vs. UAC (1962) 1 AC 100, is that one cannot put something on nothing and expect it to stand; even without any external factor, it would definitely collapse like pack of cards. See: OUT vs. ACB International Bank Plc & Anor (2008) LPELR – 2827 (SC); NIPSS, Kuru vs. Kraus Thompson Organisation & Ors (2015) LPELR – 24922 (CA); UBA vs. Dana Pharmaceuticals Limited (2018) LPELR – 43799 (CA). A null proceeding or judgment is deemed not have even existed at all, it cannot therefore be the basis for the assertion of rights or to command obligation; it has no legal relevance, such judgment cannot be employed as pedestal upon which to concrete a valid and sustainable decision. It therefore stands positive reason that this Court cannot rightly make an order of retrial of a suit which it had declared a nullity on the basis that the Originating processes filed by the Claimant were incompetent, hence the court lacked jurisdiction to entertain the claim. If I may ask, upon which originating process will the order of retrial be made. There was no foundation upon which an order of retrial could be erected.” PER T. ABUBAKAR, J.C.A.

PRINCIPLE OF ESTOPPEL- WHETHER THE PRINCIPLE OF ESTOPPEL IS APPLICABLE WHERE A JUDGMENT IS DECLARED A NULITY

“The learned trial judge with all due respect ought to have consciously directed his mind to the portion of the decision of Supreme Court in Ajiboye, which he aptly quoted that the principle of estoppel is inapplicable where the judgment is declared a nullity. Null proceedings have no legal consequence, so that the Court cannot make an order of retrial in proceedings which have been declared a nullity, ab initio.” PER T. ABUBAKAR, J.C.A.

JUDGMENT OF COURT- ATTITUDE OF COURT WHERE THE PROCEEDINGS AND JUDGMENT OF A COURT IS FOUND TO BE A NULLITY

“Where the proceedings and judgment of a Court turn out to be or is found to be a nullity, the attitude of the Court as done in CA/L/360/2011 is to put an end to the matter, without the need to consider the merit of such a case and the soundness of such a null judgment.” PER T. ABUBAKAR, J.C.A.

POWER OF THE COURT OF APPEAL – EXTENT OF THE POWER OF THE COURT OF APPEAL

“In the first place, the power of this Court is not limited by the Notice of Appeal, as evident from Order 4 Rule 4 of the Court of Appeal Rules, 2016, which provides:

“The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s Notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”

• PER T. ABUBAKAR, J.C.A.

 PRINCIPLE OF RES JUDICATA- APPLICABILITY OF THE PRINCIPLE OF RES JUDICATA

“The law with respect to the principles of res judicata is well settled. The principle presupposes that where a competent court has determined an issue and entered judgment, neither of the parties will have the liberty to re-litigate that issue in subsequent proceedings, since the matter is res judicata. The principle is predicated on the fact that there must be an end to litigation. See A-G., Nasarawa State vs. A-G., Plataeu State (2012) LPELR – 9730 (SC); Dakolo & Ors Vs. Rewane-Dakolo & Ors (2011) LPELR – 915 (SC).” PER T. ABUBAKAR, J.C.A.

PLEA OF RES JUDICATA – CONDITIONS UPON WHICH A PLEA OF RES JUDICATA CAN BE SUSTAINED BY A COURT

“A successful plea of res judicata constitutes a bar to the jurisdiction of the court to entertain and determine a claim before it. To this extent therefore, before a plea of res judicata can be sustained by the court, it must be established that the parties (or privies) are the same; the res, that is the subject matter of litigation, is the same; and the issues deliberated in both the previous action and the subsequent suit are the same. In S.O. Utuks & Ors vs. Nigerian Ports Authority (2005) LPELR – 3440 (SC), the Supreme Court of Nigeria, per Tabai, JSC held as follows:

There are four conditions precedent to the successful plea of the doctrine of res judicata: (1) That the parties or their privies in the previous case and the present one are the same. (2) That the issues and subject matter in the two cases are the same. (3) That the adjudication in the previous case was given by a court of competent jurisdiction; and (4) That the previous suit finally decided the issues between the parties or their privies. All these conditions being present in the instant case, the doctrine of res judicata applies to defeat the suit.

See: also Ikotun vs. Oyekanmi & Anor (2008) LPELR – 1485 (SC).” PER T. ABUBAKAR, J.C.A.

 STATUTES REFERRED TO:

Court of Appeal Rules, 2016

Legal Practitioners Act, 1975