CORAM

---

---

PARTIES

---

JAURO DOVO PITTI

---

MALLAM SANI AUDU & ORS

---

AREA(S) OF LAW

---

Not Available

 

---

SUMMARY OF FACTS

The Appellant alleged that the Respondents and their father Kachalla Umaru Sembe trespassed on the portion of land previously litigated upon 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, which appeal was allowed, with the decision of the trial court set aside and in its place, the lower court 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 of the lower court, the Appellant commenced a fresh action before the Taraba State High Court in suit No. TRSJ/14/2017, in which the sought declaratory, injunctive orders and general damages for trespass. 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.

---

HELD

---

Appeal Allowed

---

ISSUES

---

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. 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”

---

RATIONES DECIDENDI

---

DELIVERY OF JUDGMENT – GROUND ON WHICH A JUDGMENT DELIVERED OUTSIDE THE STATUTORY PERIOD WOULD AMOUNT TO A NULLITY

---

“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.”

---

COURT PROCEEDINGS – EFFECT OF A PROCEEDING THAT HAS BEEN DECLARED A NULLITY

---

“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.

---

DECISION OF COURT- EFFECT OF A DECISION THAT IS SET ASIDE

---

“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.

---

‘STRIKING OUT’ – EFFECT OF ‘STRIKING OUT’ A CLAIM

---

“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, APRAS. C – E.”

---

ORDER OF STRIKING OUT AND DISMISSAL – DISTINCTION BETWEEN AN ORDER OF STRIKING OUT AND DISMISSAL

---

“I hold that an order striking out a claim, keeps the claim alive whereas a “dismissal” terminates an action. “

---

SETTING ASIDE” AND “STRIKING OUT” ORDER – EFFECT OF A “SETTING ASIDE” AND “STRIKING OUT” ORDER

---

“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, also Fagunwa & 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.”

---

CASES CITED

---

Not Available

---

STATUTES REFERRED TO

---

Constitution of the Federal Republic of Nigeria, 1999|

---

CLICK HERE TO READ FULL JUDGMENT

---