CORAM

---

DENNIS ONYEJIFE EDOZIE

IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT (Read the Leading Judgment)

OKWUCHUKWU OPENE

---

PARTIES

---

CHIEF JOSEPH OKON EDEM PLAINTIFF(S)

---

AKAMKPA LOCAL GOVERNMENT RESPONDENTS

---

AREA(S) OF LAW

---

---

SUMMARY OF FACTS

This is an appeal against the ruling at the Akamkpa High Court in a motion on notice. In the motion, the Respondent as Applicant prayed the court to set aside the consent judgment in suit No. MK/16/97 and that trial should commence on the suit. In a reserved ruling, the court below granted the two reliefs prayed for after holding that the Respondent’s supporting affidavit disclosed a case of fraud in obtaining the consent judgment. The trial judge affirmed the procedure adopted for initiating the proceedings by motion on notice stating that it was in order. Aggrieved by that ruling, the Appellant lodged the instant appeal.

---

HELD

---

Appeal dismissed.

---

ISSUES

---

Whether the Appellant has met the requirement of law before filing an appealWhether this action commenced by motion on Notice was initiated by due process of law, And if not Whether the High Court had the jurisdiction to entertain an action not commenced by due process of law?

---

RATIONES DECIDENDI

---

DUTY OF PARTIES- NOT TO SPRING SURPRISES ON OPPOSITE PARTY

---

“A party ought to be consistent in the case he pursues and not spring surprises on the opposite party from one stage of the case to another.” PER EDOZIE JCA

---

FUNCTUS OFFICIO – AMBIT OF

---

“Generally when a court completes hearing a case and delivers its judgment thereon, it ceases to exercise further power in dealing with the case except with respect to such ancillary matters as stay of execution, installment payment etc. In Legal parlance the court is said to be functus officio in the case. Steps to reverse the judgment falls well within the jurisdiction of the relevant appellate court.” PER EDOZIE JCA

---

RULES OF COURT-NEED FOR RULES TO BE OBEYED-DUTY OF A PARTY TO FOLLOW THE PROCEDURE FOR COMMENCING AN ACTION

---

“Rules of court are meant to be obeyed. They are not made for the fun of it. Where a law or rule of court clearly specifies, as in this case, a procedure for commencing an action, the Respondent is bound to follow that procedure in order to invoke the jurisdiction of the court.” PER EDOZIE JCA

---

JUDGMENT-WHEN A COURT IS PERMITTED TO SET ASIDE ITS OWN JUDGEMENT

---

There are however instances in which the court that gave a judgment is permitted to set aside such judgment. The various High Court Civil Procedure Rules allow the court under certain conditions to set aside its judgment obtained in the absence of one of the parties or in default of pleadings. There is also an inherent power of the court to set aside its judgment which has been obtained as a result of fraud practised by one of the parties on the court, or which for any reasons whatsoever as for example lack of jurisdiction is a nullity. Okolo Ojiako & ors v. Onwuma Ogueze and Ors. (1962)1 All NLR 58; Udo Idion Ekerete v. Udo Enwe Eke (1925) 6 N.L.R. 118, Graig v. Kanzeen (1943) K.B. 236; Salisu Idris Saliyun and ors v. Alhaji Dan Mashi & ors (1975) 1 N.M.L.R. 55 at 58, or where it is obvious that the court was misled into giving the judgment under the mistaken belief that the parties consented to it.” PER EDOZIE JCA

---

COMMENCEMENT OF ACTION-WHERE PROCEDURE FOR COMMENCING AN ACTION IS NOT FOLLOWED-EFFECT OF

---

“Where the procedure for commencing an action is not followed the court does not have the jurisdiction to entertain the suit or grant the reliefs sought.” PER EDOZIE JCA

---

ISSUES FOR DETERMINATION- WHAT ISSUES FOR DETERMINATION SHOULD BE PREDICATED ON

---

“Issues for determination in an appeal must be predicated on the grounds of appeal attacking the judgment appealed against. They are not complaints of failure to comply with the rules of court governing the filing of brief or the drafting or filing the grounds of appeal.” PER EDOZIE JCA

---

FINAL JUDGMENT- MEANING OF

---

“A final judgment is one which puts an end to the action by declaring that the plaintiff has or has not entitled himself to the remedy he sued for so that nothing remains to be done but to execute the judgment. “PER EDOZIE JCA

---

CASES CITED

---

Adegoke Motors Ltd v. Adesanya & Anor (1989)3 NWLR (Pt.108) 250 at 166Adeyemi v. Theophilus Awobukun (1968) 2 All NLR 318Agbaje v. Ibru Sea foods Ltd (1972) 5 SC 50 at 55Ajide v. Kelani (1989) 3 NWLR (Pt.121) 248 at 269Akinsanya v. U.B.A. Ltd. (1986) 4 NWLR (Pt.35) 273 at 325Alade v. Abimbola (1978) 2 SC 39 at 100Bensah v. G.B. Ollivant Ltd 14 WACA 408B.R.T.C. v. Egbuonu (1991) 2 NWLR (Pt.171) 8: at 91Edebiri v. Edebiri (1997) 4 N.W.L.R. (Pt.498 165 at 176Ganiyu Agunbiade v. Okunoga Co.(1961) All NLR 110Nabham v. Nabham (1967) 1 N.M.L.R.Nigerian Cement Company Limited v. Nigerian Railway corporation (1992) 1 NWLR (Pt.220) 747Niger Progress Ltd v. North East Line corporation (1989) 3 NWLR (Pt. 107) 77 at 82Obajimi v. Attorney- General Western Nigeria (1967) 1 All NLR 31Omonuwa. v. Oshodi& Anor.(1985) 2 SC 1 at 27; (1985) 2 NWLR (Pt.10) 835Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) p. 172Tukur v. Taraba State (1997) 6 SCNJ 81 at 108 U.B.N. Ltd. v. Penny Kart Ltd. (1992) 5 IWLR (Pt.240) p. 242Udenne v. Ugwu (1997) 3 NWLR (Pt. 491) 57

---

STATUTES REFERRED TO

---

Court of Appeal Rules Cap 62 Vol. 4 Laws of the Federation of Nigeria 1990

---

CLICK HERE TO READ FULL JUDGMENT