CORAM

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PARTIES

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FIRST BANK OF NIG. LIMITED

 

APPELLANTS 

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DR. KENNETH KEN-WORGU

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, BANKING, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

 

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SUMMARY OF FACTS

The Appellant obtained a judgment delivered by Honourable Justice O.A. Adamson of the Lagos High Court in a suit against Fargo Petroleum & Gas Limited & two other defendants one of which is one Mr. Seun Ogunbambo. The Appellant registered this judgment at the Federal Land Registry, Ikoyi, against a property belonging to the said Mr. Seun Ogunbambo situate at 2, Olamijuyin Avenue, Park View Estate, Ikoyi, Lagos State in February, 2016 and thereafter obtained from Honourable Justice O.A. Adamson an order of attachment for sale of the said property. On the other hand, Stanbic IBTC Bank obtained a consent judgment in January, 2013 in a suit against the same Mr. Seun Ogunbambo who was the sole Defendant before the lower court in the suit. On the 1 st July, 2016, Honourable Justice K.O. Dawodu also of Lagos State High Court granted Stanbic IBTC Bank leave to attach and sell the said property belonging to Mr. Seun Ogunbambo in satisfaction of the outstanding judgment debt in the sum N275, 000,000. (Two Hundred And Seventy Five Million Naira) only. Stanbic IBTC Bank registered the judgment with the Federal Land Registry, Ikoyi, Lagos State in January, 2017. Relying on the judgment and the order of attachment, Stanbic IBTC Bank by its application dated the 20 th February, 2017 prayed Honourable Justice O.A. Adamson to set aside its order of 3rd February,2017 as it affects the property situate at 2, Olamijuyin Avenue, Park View Estate, Ikoyi, Lagos State on the ground that the property had earlier been attached by an order of Honourable Justice K.O. Dawodu, execution had been levied and possession of the property had been given to Stanbic IBTC Bank which had since transferred interest in the property to a third party.

The said application by Stanbic IBTC Bank was dismissed by Honourable Justice Adamson for failure to place cogent and material evidence before the court to set aside its order of attachment. The Respondent herein who had bought the property from Stanbic IBTC Bank then came into the picture by applying to Honourable Justice Adamson to set aside his order of attachment of the property earlier made in favour of the Appellant. The learned judge of the lower court granted the Respondent’s application and accordingly set aside his order of attachment of the property made in favour of the Appellant. That decision triggered the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether based on doctrine of res judicata, the Respondent was estopped from bringing the same reliefs before the same court?

Whether the lower court had jurisdiction to have entertained and granted the Respondent’s application dated 4th October, 2017 set aside its own order, the Appellant’s order of attachment?

 

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RATIONES DECIDENDI

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JURISDICTION – THE CONDUCT OF COURTS TO ISSUES OF JURISDICTION

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I will consider the second issue first as it touches on jurisdiction of the lower court to entertain the Respondent’s application that gave rise to this appeal. It is trite that issue of jurisdiction is a threshold issue and whenever issue of jurisdiction is raised in whatever guise the court must resolve the issue first. – Per A. S. Umar, JCA

 

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COURTS – CONDUCT OF COURTS WHEN THEY HAVE MADE DECISIONS – WHEN COURTS CAN SET ASIDE THEIR DECISIONS

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…generally, whenever a court has decided a case and the decision is duly embodied in some

judgment or order such a court cannot reopen the case and substitute its earlier decision with another. However, this general position accommodates some exceptions which have evolved over time in the overall interest of justice. In MICHAEL vs. ENGINEER ANTHONY ANENE OKECHUKWU & ANOR (2015) LPELR-40873(CA) (PP. 18-21 PARAS. D), this court PER ABIRU, J.C.A, spared considerable time to expound the law on this point and I consider his Lordship’s dictum which I reproduce anone comprehensive enough to encapsulate my understanding of the law. His Lordship said

“It is trite that once a matter has been decided or once an issue has been raised and distinctly determined by a Court or Tribunal, the same Court or a Court of coordinate jurisdiction as the first Court cannot rescind the decision either on the matter or on the issue except where the decision was shown to be a nullity or was granted in default of one of the parties – Ojiako vs. Ogueze (1962) 1 SCNLR 112, Okoye vs. Nigeria Construction & Furniture Co Ltd (1991) 6 NWLR(Pt. 199) 501, Edem vs. Akamkpa Local Government (2000) 4 NWLR (Pt 651) 70 and Offodile vs. Egwuatu (2006) 1 NWLR (Pt 961) 421. As a general rule, every Court of record, including the Supreme Court has inherent jurisdiction on application and in appropriate cases and circumstances to set aside its judgment or decision. The jurisdiction may be exercised where the judgment or decision sought to be set aside is null and void ab initio or there was a fundamental defect in the proceedings which vitiates and rendered same incompetent and invalid – Skenconsult (Nig.) Ltd vs. Ukey (1981) 6 SC 6, Adegoke Motors Ltd vs. Adesanya (1989) 3 NWLR (Pt. 109) 250, Koden vs. Shidon (1998) 10 NWLR (Pt. 571) 662, Olorunfemi vs. Asho (2000) 2 NWLR (Pt. 643) 143, Adedayo vs. Peoples Democratic Party (2013) 17 NWLR (Pt 1382) 1. Explaining this point further, the Supreme Court in Eke vs. Ogbonda (2006) 18 NWLR (Pt 1012) 506 itemized the two situations where the judgment of a Court can be set aside by that Court or by a Court of coordinate jurisdiction on the ground that it is a nullity. The Supreme Court stated that (i) where service of process is required, failure to serve such a process is a fundamental vice and the person affected by the order but not served with the process is entitled, ex debitio justitiae, to have the order set aside as a nullity; (ii) where the Court as constituted lacks the competence to hear a particular case, its decision thereon is considered a nullity and the same Court which made the order can set it aside. In Adeyemi Bero vs. LSDPC (2013) 8 NWLR (Pt 1356) 238, the Supreme Court recognized that a Court in its inherent jurisdiction has the power to set aside its own judgment or order not only where it is made without jurisdiction, but also if same has been fraudulently obtained. In Igwe vs. Kalu (2002) 14 NWLR (Pt 777) 435, the Supreme Court reiterated the principle that a Court cannot under any disguise sit on appeal over its judgment or order nor can it review them except under very special circumstances and it listed the circumstances thus:

i. when the judgment or order is obtained by fraud or deceit either in the Court or of one or more of the parties, such a judgment or order can be impeached or set aside by means of an action which may be brought without leave.

ii. when the judgment or order is a nullity, a person affected by it is entitled ex debitio justitiae to have it set aside.

iii. when it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it.

This position was reiterated by the Supreme Court in Ugba vs. Suswam (2014) 14 NWLR (Pt 1427) 264. In 21st Century Technologies Ltd Vs Teleglobe America Inc (2013) 3 NWLR (Pt 1340) 98, it was held that a Court of law has power to interfere with its own judgment or ruling and to set it aside in the following instances (a) when the judgment was obtained as a result of fraud perpetuated by one of the parties; (b) when the judgment is a complete nullity ab initio, (c) where it is obvious on the face of the record that the Court was misled into giving the judgment under a mistaken belief that the parties consented to it when in fact they did not; (d) when it is to correct accidental slips and mistakes (be it clerical or otherwise); (e) where it is to correct arithmetical errors committed on the face of a judgment. Outside the above situations, a Court is not at liberty to overrule itself”. – Per A. S. Umar, JCA

 

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PROPERTY – WHEN WRITS AGAINST THE PROPERTY OF ANY PERSON HAVE BEEN ISSUED BY MORE THAN ONE COURT

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…by virtue of section 32 of the Sheriffs And Civil Process Act, when writs against the property of any person have been issued from more than one court, the right to the property attached shall be determined according to the order of priority of the respective times of application to the registrars for the issue of the writs. – Per A. S. Umar, JCA

 

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COURTS – CONDUCT OF COURTS TO AN ORDER THAT IS A NULLITY

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The law is trite that when an order is a nullity the same court that granted the order can set it aside. – Per A. S. Umar, JCA

 

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INTERPLEADER PROCEEDINGS – THE NATURE AND PURPOSE OF INTERPLEADER PROCEEDINGS

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Section 34 Sheriff and Civil Process Act provides:

1. “If a claim is made to or in respect of any property attached in execution under process of a Court, or in respect of the proceeds or value thereof, the registrar may, upon the application of the sheriff, as well before as after any action brought against him, issue a summons calling before the Court the party at whose instance the process issued and the party making the claim.

2. Upon the issue of the summons, any action brought in any Court in respect of the claim or

of any damage arising out of the execution of the writ shall be stayed.

3. On the hearing of the summons, the Court shall adjudicate upon the claim, and shall also

adjudicate between the parties or either of them and the sheriff upon any claim to damages

arising or capable of arising out of the execution of the writ by the sheriff, and shall make such order in respect of any such claim and the costs of the proceedings as it thinks fit.

Order VI Rule 14 of the Judgment Enforcement (Procedure) Rules Supra provides as follows:

“Where property has been attached and any claimant alleges that he is entitled to it under a mortgage or bill of sale or otherwise by way of security for a debt, the Court may order the property or any part thereof to be sold, and may direct the proceeds of sale to be applied in such manner as may be just”.

The nature and purpose of interpleader proceedings has been a subject of judicial pronouncement in a plethora of cases. It is initiated to determine whether property or goods the Sheriff has seized or is about to seize by way of execution for sale, belongs to the judgment- debtor, and therefore can be seized, or whether it belongs to someone else, the Claimant, and therefore cannot be seized. This, in effect, is the whole purpose and raison-detre of the rule.

The procedure to be followed is that the Claimant files an application before the Court, which thence issues an interpleader, summoning the Judgment Creditor and the Claimant, for a determination of the ownership of the goods. In these proceedings, the Claimant is deemed the Plaintiff and the Judgment Creditor, the Defendant. Accordingly the burden of proof is on the Claimant, as the Plaintiff in the proceedings. The onus lies on him to establish his title to the property in dispute, or where his claim is not absolute title, he must prove the precise interest or title he claims. See OLATUNDE vs. OBAFEMI AWOLOWO UNIVERSITY & ANOR (1998) 5NWLR (PT 549) 178 or (1998) LPELR 2575 SC. OBUMSEL & ANOR vs. UWAKWE (2019) LPELR 46837 SC, KALA vs. POTISKUM (1998) 3 NWLR PART 540 PAGE 1 AT 17-18 PARA H-A PER; NATHANIEL BULUS vs. A.C. OKPALA (2017) LPELR-43423(CA) PAGE 20 PARA A-E, ENTERPRISE BANK vs. ROMAK INTERNATIONAL CO. LTD (2019) LPELR 48056 CA. – Per A. S. Umar, JCA

 

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FINAL DECISION – WHAT CONSTITUTES A FINAL DECISION

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In SAINT GOBAIN PAM S. A. vs. INTERNATIONAL CONSULTANTS INCORPORATED (2015) LPELR-24663(CA) (PP. 12-13 PARAS. A-A), this court PER OTISI, J.C.A considering the nature of a decision that is final to sustain a plea of res judicata said,

“…The question of what constitutes a final decision was considered in Fadiora vs. Gbadebo (1978) LPELR-1224(S.C.), (1978) ALL NLR 42. The Supreme Court, per ldigbe, JSC, cited with approval the learned authors of Spencer Bower & Turner on the Doctrine of Res Judicata

(1969 Ed.) in Art 164, P. 34 as follows: “A judicial decision is deemed to be final, when it leaves nothing to be judicially determined or ascertained thereafter, in order to render it effective and capable of execution, and is absolute, complete, and certain, and when it is not lawfully subject to subsequent decision, review or modification by the Tribunal which pronounced it. ‘In Gomez & Anor vs. Cherubim and Seraphim Society & Ors. (2009) LPELR- 1331 (SC), the Supreme Court, per Oguntade, JSC said: “However, where the order made finally determines the rights of the parties, as to the particular issues disputed, it is a final order even if it arises from an interlocutory application”. Therefore even from an interlocutory application, a final decision can be made with respect to particular issues”. – Per A. S. Umar, JCA

 

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DECISION – THE TEST OF WHETHER A DECISION IS FINAL

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I am not oblivious of the use of the words ‘lacks merit’ and ‘dismissed’ employed by the learned judge of the lower court but the position of the law is that no matter the words or phrase used to conclude a decision of the court, whether the words struck out or dismissed are used, the test of whether a decision is final is if it is one that cannot be varied, re-opened or set aside by the court that delivered it or any other court of coordinate jurisdiction although it may be subject to appeal to a court of higher jurisdiction. See: ONYEABUCHI vs. INEC, ABUJA & ORS (2002) LPELR 2726 SC, UBN vs. BONEY MARCUS INDUSTRY LTD & ORS (2005) LPELR 3394 SC. UBN PLC vs. SOGUNRO & ORS (2006) LPELR 3393 SC, KASANDUBU & ANOR vs. ULTIMATE PETROLEUM LTD & ANOR (2007) LPELR-8228(CA) (Pp. 8-9 paras. E). – Per A. S. Umar, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Sheriffs And Civil Process Act

2. Judgment Enforcement Rules

 

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