Ecotrade Limited V. Alhaji (Chief) Sikiru Alabi Macfoy & Anor

Areas of Law

ACTION, APPEAL, COURT, FAIR HEARING, JUDGEMENT AND ORDER, LAND LAW, PARTIES, PRACTICE AND PROCEDURE, WORDS AND PHRASES

Summary of Facts

The Appellant in this case brought an application before the High Court of Lagos State praying for leave to intervene in the matter between the Judgment Creditor/1st Respondent and 2nd Respondent as an interested party. The subject matter of the dispute was a landed property which the 2nd Defendant/Respondent had sold to the Appellant but which property the Judgment Creditor/Respondent had applied to sell in order to settle a Judgment. At the end of the hearing, the trial judge delivered a ruling without determining the ownership of the land on the ground that the application was brought after Judgment had been entered in the suit. Dissatisfied by the ruling of the trial court, the Appellant appealed.

Held

Appeal Allowed

Issue for Determination

• Whether the learned trial Judge was right in declining to determine ownership of the property in dispute on the grounds that the Interveners application in that regard was brought after judgment has been entered in the suit.

Rationes

COURT – A COURT WHICH HAS BECOME FUNCTUS OFFICIO IS NOT EMPOWERED TO REOPEN THE CASE FOR PURPOSES OF CHANGING ITS OPINION

“The position of the law is that once a court or tribunal delivers its final judgment in a case before it, it becomes functus officio with respect to that case; it has no power to reopen the case for the purpose of making corrections or changing its opinion. The exception to this is where there is need to make minor permissible correction under the slip rules. See Nigerian Army v. Iyela (2008) 18 NWLR (PT. 1118) 115; Emodi v. Kwentoh (1996) 2 NWLR (PT. 433) 656; Umunna v. Okwurajiwe (1978) 6 & 7 SC 1 at 9; Berliet Nig. Ltd. V. Kachalla (1995) 9 NWLR (PT. 420) 478.” PER A. O. OBASEKI-ADEJUMO, J.C.A

SETTING ASIDE A DEFAULT JUDGMENT – THE POWER TO SET ASIDE A JUDGMENT DELIVERED IN THE ABSENCE OF A PARTY CAN BE EXERCISED BY ANY JUDGE

“However, the power to set aside a judgment given in the absence of a party could be exercised by any judge of the High Court, not necessarily the Judge who gave the Judgment. See Emodi v. Kwentoh (supra); Wimpey Ltd. V. Balogun (1986) 3 NWLR (PT. 128); Omoregbe v. Pendar Lawani (1980) 3-4 SC 108.” PER A. O. OBASEKI-ADEJUMO, J.C.A

DEFAULT JUDGMENT – MEANING OF A DEFAULT JUDGMENT.

“The apex court in the case of Bello v. INEC (2010) 8 NWLR (PT. 1196) 342; (2010) LPELR 767, page 36, paras A-B, per Mohammed, JSC and page 79, paras D-F, per Adekeye, JSC respectively held thus:
“A default judgment is one given in the default of appearance or pleadings against a defendant or a plaintiff in a cross-action whose names appear as such defendant or plaintiff in the record of the trial court.”
“Any judgment in default of pleadings or appearance is not a final judgment since both parties were not heard on the merit of the case. The judgment was obtained by failure of the defendant to follow certain rules of procedure. Where the court has not pronounced a judgment on merits or by consent, such a judgment may be set aside by any trial court in the judicial division where the judgment was obtained.”
See also Mohammed v. Hussein (1998) 14 NWLR (PT. 584) 108: UTC Nig.Ltd. V Pamotei (1989)2 NWLR (Pt. 105)244.” PER A. O. OBASEKI-ADEJUMO, J.C.A

ACTION – NATURE OF REMEDY AVAILABLE TO A PERSON WHO IS NOT A PARTY TO AN ACTION WHERE THE JUDGMENT AFFECTS HIM

“A remedy in law is available to a person who is not a party to a suit where the judgment reached in the case affected him. In a situation like this, such a person is allowed in law to appeal with leave against the judgment as a person interested. See Section 243 (a) and (b) of the 1999 Constitution; Bello v. INEC (supra).” PER A. O. OBASEKI-ADEJUMO, J.C.A

FAIR HEARING – ALL APPLICATIONS PENDING BEFORE A COURT MUST BE HEARD ON ITS MERITS

“The law is true that for the purpose of fair hearing, all applications pending before a court must be heard on its merit. See Nalsa & Team Asso. V. NNPC (1991) 8 NWLR (PT. 212) 652; Otapo v. Sunmonu (1987) 2 NWLR (PT. 58) 587.” PER A. O. OBASEKI-ADEJUMO, J.C.A

APPLICATION BEFORE THE COURT – GRANTING OF PRAYERS IN AN APPLICATION BEFORE THE COURT IS DISCRETIONARY

“The Court is not to be compelled to grant all prayers in the applications, grant of same is discretionary.” PER A. O. OBASEKI-ADEJUMO, J.C.A

MOTION ON NOTICE – NATURE OF A MOTION ON NOTICE

“The nature of a motion on notice is interlocutory because it does not entail the filing of pleadings. It is only supported by affidavits evidence and a written address which differs from averments in statement of claim. See Director Of SSS v. Agbakoba. (1999) 3 NWLR (Pt.595) 3..” PER A. O. OBASEKI-ADEJUMO, J.C.A

INTERVENER – MEANING OF AN INTERVENER

“An intervener is a person who was not originally a party in the suit but claims an interest in the subject matter. See Taiwo v. Adegboro (2011) 11 NWLR (PT. 1259) 562; Daughters Of Divine Love Congregation & Ors v. Ugwu (2013) LPELR-22896.” PER A. O. OBASEKI-ADEJUMO, J.C.A

GRANTING THE PRAYERS OF AN INTERVENER – THE POWER OF THE COURT TO GRANT THE PRAYERS OF AN INTERVENER IS DISCRETIONARY.

“The power of the court to grant the prayers of the intervener contained in its motion is discretionary; howbeit, the court must hear all applications before it and decide it either was. See Dingyadi v. INEC (No. 2) (2010) 18 NWLR (PT. 1224) 154; Mobile Prod. (Nig.) Ltd. V. Monokpo (2003) 18 NWLR (PT. 852) 346; Kotoye v. Saraki (1991) 8 NWLR (PT. 211) 638; Okoro v. Okoro (1998) 3 NWLR (PT. 540) 65.” PER A. O. OBASEKI-ADEJUMO, J.C.A

COURT OF APPEAL – POWERS OF THE COURT OF APPEAL TO ENTERTAIN A MATTER AS A COURT OF FIRST INSTANCE.

“Broadly speaking, Section 15 of the Court of Appeal Act 2010 confers general powers on this court to interfere in certain matter emanating from the lower court as if it is a matter before the Court of Appeal as court of first instance See Etajafa v. Ologbo [2007] 16 NWLR (PT. 1061) 554; Tolani v. Kwara State Judicial Service Commission [2009] LPELR-8375; Atolagbe v. Sharun [1985] 4 SC (PT. 1) 250.” PER A. O. OBASEKI-ADEJUMO, J.C.A

TRANSFER OF TITLE TO LAND – ESSENCE OF CONSENT OF THE GOVERNOR TO A TRANSFER OF TITLE TO LAND

“Whether a Deed of Assignment as an instrument of transfer of title in land is void if the consent of governor was not sought and obtained at the time of execution, is of no moment in this appeal. The consent could be obtained later but without it, the transaction remains in escrow. See. Iragunima v. R.S.H.P.D.A. [2003] 12 NLWR (pt. 834) 427; Awojugbagbe Light Industries v. Chinukwe [1995] 4 NWLR (PT. 390) 379.” PER A. O. OBASEKI-ADEJUMO, J.C.A

TRANSFER OF TITLE TO LAND BY A REGISTERED OWNER – STATUS OF A TRANSFEROR WHERE A REGISTERED OWNER TRANSFERS TITLE OF LAND IN A REGISTERED LAND

“However, where there is a transfer of title in a registered land by a registered owner, it behooves the transferee to complete the registration as owner of the land transferred. Until such registration, the transferor remains the registered owner of the land on the register of title. See Section 28 (2) of the Registration of Titles Law, Chapter R4, Laws of Lagos State.” PER A. O. OBASEKI-ADEJUMO, J.C.A

REGISTRATION AND CONSENT OF THE GOVERNOR – ESSENCE OF REGISTRATION AND CONSENT OF THE GOVERNOR IN TRANSFERRING TITLE TO LAND

“The essence of the registration and consent of governor is to guarantee the ownership and the title of the land. Consent does not necessarily need to be obtained at the commencement of the transaction but it must be subsequently obtained to perfect the title. See Awojugbagbe Light Industries v. Chinukwe (supra); Sections 22 and 26 of the Land Use Act, 1978.” PER A. O. OBASEKI-ADEJUMO, J.C.A

REGISTRATION OF TITLE TO LAND – DUTY OF THE REGISTRAR OF TITLE IN REGISTERING LAND

“What the law states is that the date of the receipt for the registration shall be noted on the application. Therefore, this is taken as the day application for same was made. For the Registrar of Title to register the land without prejudicing interest of the parties, he must satisfy himself following a careful perusal of the documents submitted for processing same that the transfer is genuine regardless. In his exercise of discretion to register or not, he must have considered the notice of caveat of the Respondent before the registration. Registration is not automatic, there are steps and procedures to follow before the Registrar guarantees the land.” PER A. O. OBASEKI-ADEJUMO, J.C.A

Statutes Referred To:

Constitution of the Federal Republic of Nigeria, 1999
Court of Appeal Act, 2010
Evidence Act, 2011
High Court of Lagos State (Civil Procedure) Rules 2004
Land Use Act, 1978.
Registration of Titles Law, Chapter R4, Laws of Lagos State
Sheriffs and Civil Processes Act