CORAM

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PARTIES

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PRINCE DANIEL OBINNA NWAWUIKE APPELLANTS

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UNION HOMES SAVINGS AND LOANS PLC RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent/Applicant/Judgment Debtor now Appellant, secured a loan facility in the sum of N32, 000,000.00 (Thirty Two Million Naira), from the Applicant/Respondent/Judgment Creditor (Respondent in this appeal) to enable him complete the payment for a 5-Bedroom Detached House with 2 rooms Boys Quarters at Magodo, GRA Shangisha, Lagos, which loan is payable by monthly instalment of N561, 271.86. Part of the agreement was that failure of the Appellant to pay the agreed monthly instalment for three (3) consecutive months would entitle the Respondent to sell the property to recover its losses and expenses. As security for the loan, the Appellant deposited Certificate of Occupancy No. 15/15/2009 of the previous owner of the property; an undated and unperfected Deed of assignment signed by the Appellant and the original owner of the property. The Appellant was in default of his monthly instalment, hence, the Respondent brought an Originating Summons before the High Court of Lagos State, to take possession of the said property and sell same in line with the agreement entered into between him and the Appellant. At the hearing of the Respondent’s Originating Summons, the Appellant was neither represented in person or by counsel and as such, the application of the Respondent was granted at the lower court. Consequent upon the judgment of the lower court, the Appellant filed a motion praying the court to set aside its judgment being a default judgment and restrain the Respondent from taking steps towards enforcing the judgment, on the ground that the mortgage transaction on which the judgment was predicated is in violation of Section 22 of the Land Use Act, and as such does not confer jurisdiction on the court. After considering the application of the Appellant and the other processes, the lower court dismissed same. Dissatisfied with the decision of the Court, the Appellant has appealed to the Court of Appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether bearing in mind the circumstance of the case the lower court ought to have set aside the judgment it delivered in the absence of the Appellant on 30/6/16. Whether the lower court was right in assuming jurisdiction over the matter upon which judgment was delivered in the light of the challenges on the service of the motion for re-listing filed on 28/10/16 Whether the transaction entered between the parties which the Respondent based the sale on is valid and enforceable in the light of the provisions of the Land Use Act especially section 22. Whether the lower court admitted inadmissible documents.

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RATIONES DECIDENDI

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JURISDICTION OF COURT- STATUS OF PROCEEDINGS CONDUCTED WITHOUT JURISDICTION

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“It is a trite principle of law that any proceeding conducted in a court will amount to a nullity if the court had no jurisdiction to entertain the matter in the first place. In fact, proceedings without jurisdiction are void abinitio and cannot be revived in any way by the brilliance of the judgment or proceeding. Once a court has no jurisdiction to entertain the action brought before it, it will amount to a complete waste of time and resources to delve into the legal issues in the matter. An analogy I can use to drive home this point is of a door of treasure being opened to a person but he cannot access that door because the gate into the compound is locked or there are furious dogs that will at best make him admire the goods but he cannot possess them. This may not be the best of analogies but in my opinion it drives home the point that a court without jurisdiction will be embarking on a useless voyage to no useful end in trying to make any sense out of the case before it because it will amount to a complete nullity. See Chief of Air Staff & Ors vs. Iyen (2005)1 SC (Pt. II)121; Owners of MV ‘Arabella’ vs. Nig. Agricultural Insurance Corporation NSCQR Vol. 34 2008 page 1091; Nwaora vs Nwabueze NSCQR Vol. 46 2011 page 409; Pavex Int. Com. Nig. Ltd vs. IBWA Ltd NSCQR Vol. 2 2000 page 254.”

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SETTING ASIDE OF JUDGMENT – WHEN CAN A COURT SET ASIDE ITS OWN JUDGMENT?

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“A court can in appropriate circumstances set aside its own judgment. This appears to be the exception to the principle that when a court has given a decision on a matter, the court becomes functus officio. See Ugba & Anor vs. Suswam & Ors (2014) 4-5 SC 47. The question is whether the circumstance of the case falls under the categories of cases where a court can set aside its own judgment. To answer that question, it will not be out of place to look at what the law says on when a court can set aside its own judgment. The Supreme Court in First Bank of Nig. Plc vs. T.S.A. Industries Ltd NSCQR Vol. 50.2 2012 646 per Ariwoola at page 676-677 in this regard held:
“ 1. When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties.
ii. Where the judgment is a nullity and a person affected by the order of court which can be described as a nullity is entitled ex debito justicie 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.
iv. Where the judgment was given in the absence of jurisdiction.
v. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.”
Similarly, the apex court in Bello vs. INEC (2010) 2 FWLR (pt. 522) 3603; (2010) LPELR-767 (SC) Adekeye, JSC at pages 78-80 held:
“A Court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside.”
Okafor v. Okafor (2000) 11 NWLR pt. 677 pg. 21, Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC pg. 6, Obimnure v. Erinosho (1966) 1 ALL NLR pg. 250
The power of a Court to set aside its judgment is statutory. The Court does not have power enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in circumstances where:-
a) The writ or application was not served on the other party or
b) The action was tainted with fraud or the Court lacks jurisdiction to entertain the action.
Lawal v. Dawodu (1972) 8 – 9 SC pg. 83.”

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SERVICE OF COURT PROCESS- EFFECT OF NON-SERVICE OF COURT PROCESS ON THE JURISDICTION OF THE COURT

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“It is a trite principle of law that a court cannot exercise jurisdiction over a person when the process of court was not served on him. Any decision arrived at without service of court process amounts to a nullity as the implication of that is that the party not served will have been denied his fundamental right to fair hearing. Non-service of court process makes the whole process invalid and makes the proceedings of no effect. The apex court has severally declared as nullity any proceeding and decision where the processes in that action were not served on all the parties. In Emeka vs. Okoroafor & Ors (2017) 11 NWLR (pt. 1577) 410, the Supreme Court per Kekere-Ekun held:
“My Lords, I deem it appropriate to commence the resolution of this issue by considering, briefly, the law governing the service of originating processes. The settled position of the law was clearly stated by His Lordship, Musdapher, JSC (as he then was) in Kida Vs Ogunmola (2006) 6 SCNJ 165 @ 174 thus: service of process on a party to an action, particularly an originating process, is crucial and fundamental. See Auto Import Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554; S.G.B.N v. Adewunmi (2003) 10 NWLR (Pt. 829) 526; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of the Courts jurisdiction was not fulfilled.
To underscore the importance of service, His Lordship continued at page 175 lines 5 – 7 (supra);
Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of counsel since where there is no service, there is no valid trial.”
The principle was re-stated in the recent decision of this Court in; Ihedioha Vs Okorocha (2016) 1 NWLR (Pt.1492) 148 @ 179 D-F by Okoro, JSC:
“… I agree that it is not every non-compliance with the Rules of Court that should vitiate the proceedings. However, where the non-compliance robs the Court of its jurisdiction, the processes and the proceedings must be set aside. I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Any breach of this principle (of fair hearing) renders the proceedings a nullity. See Chime vs. Onyia (2009) All FWLR (Pt. 480) 673 @ 730-731 Paras H-B; (2009) 2 NWLR (Pt. 1124) 1.”
See also: Skenconsult (Nig) Ltd. Vs Ukey (1981) 1 SC 6: Obimonure Vs Erinosho (1966) 1 ALL NLR 250: Craig Vs Kanseen (1943) K.B 256; National Bank (Nig) Ltd. vs. Guthrie (Nig) Ltd. (1993) 3 NWLR (Pt.284) 643.
It is therefore settled beyond dispute that the service of an originating process on a party to an action is a condition precedent to the exercise of the Court’s jurisdiction, as any party against whom a suit or process is filed has the right to know that a suit had been instituted against him, what the claims are and an opportunity to defend himself if he has a defence thereto.”

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DISMISSAL OF A CASE – EFFECT OF THE DISMISSAL OF A CASE

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“A case that is dismissed has come to an end in that court and will be said to have ran its course. It is dead as far as that court is concerned since it is over and the court becomes functus officio. On the other hand, a matter struck out is still alive and can be resuscitated by a motion to relist. See Habib Bank (Nig) Plc vs. Lodigiani (Nig) Ltd (2010)LPELR-4228 (CA); Jolimiar (Nig) Ltd & Anor vs. Liberty Bank Plc (2016) LPELR-41459(CA); Gomex & Anor vs. Cherubim & Seraphim Society & Ors (2009) LPELR-1331 (SC). In Panalpina World Transport (Nig) Ltd vs. JB Oladeen International & Ors (2010) LPELR 2902 (SC) pages 23-24, the apex court made this point in these words:
“When an order of court is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist. The simple explanation is that while the matter is discontinued as from that date, it is still alive and kept in the court’s general cause list and can be brought back to the hearing cause list when an application to relist has been granted. In such case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list-as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago.
Alor v. Ngene (2007) All FWLR pt.362 pg.1836
Waterline Nigeria Limited v. Fawe Services Limited FWLR pt.163 pg.88.”

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SERVICE OF PROCESS – WHETHER PROCESS SERVED ON COUNSEL TO A PARTY IS DEEMED PROPERLY SERVED

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“The law is clear and it is that process served on the counsel to a party is proper service in law. See Odutola vs. Kayode (1994) LPELR-2262(SC); Saleh vs. Abah & Ors (2017) 12 NWLR (Pt. 1578)100; Mohammed vs. Husseini (1998) 11-12 SC135.”

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SETTING ASIDE OF JUDGMENT – CONDITIONS UPON WHICH A COURT CAN SET ASIDE ITS OWN JUDGMENT

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“A judgment is not liable to be set aside by the same court because it is wrong by whatsoever parameters used to look at the judgment. Except for the specific reason given as mentioned above, any complaint about a judgment should be on appeal to a higher court and not for the lower court to set aside its judgment. I had mentioned above the conditions upon which a court can set aside its own judgment. If the Appellant has not met those conditions, then the ruling of the lower court will be upheld. For emphasis sake, I will reproduce those conditions again to see whether this appeal will succeed or not:
When the judgment is obtained by fraud or deceit either in the court or of one or more of the parties.
Where the judgment is a nullity and a person affected by the order of court which can be described as a nullity is entitled ex debito justicie to have it set aside.
When it is obvious that the court was misled into giving judgment under a mistaken belief that the parties consented to it.
Where the judgment was given in the absence of jurisdiction.
v. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.”
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JURISDICTION OF A COURT – MEANING OF JURISDICTION OF A COURT

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“The jurisdiction of a court refers to the power upon a court to decide the specific matter or issue presented before it by the parties. A court may have judicial powers but lacks jurisdiction. When the Claimant brings a matter before it, the jurisdiction of the court refers to the power of that court to adjudicate on the matter before it and this can be determined by the writ and the statement of Claim. See Dickson Ogunseinde Virya Farms Ltd vs. Societe General Bank Ltd & Ors (2018)9 NWLR (Pt. 1624) 230; Adetayo & Ors vs. Ademola & Ors (2010) 3-5 SC(Pt. I)87. In A.G. Federation vs. A.G. Lagos State (2017) I SC (Pt. II) 88, the apex court per Sanusi, JSC held:
“There is no gainsaying that issue of jurisdiction is radical and a crucial point which when raised, is challenging the competence of the Court to hear and determine the case. Any proceedings conducted by a Court which does not have jurisdiction, no matter how well or brilliantly it was conducted is a nullity. See Dapianlong vs Dariye (2007) 8 NWLR (pt. 1036) 332. That is the more reason why when Court’s jurisdiction is challenged, the Court must first of all assume jurisdiction to decide whether in very clear and unambiguous terms, it has or lacks jurisdiction. See State Dosunmu Mansion vs Halliburton Energy Services Ltd (2007) 2 NWLR [pt.108) 211; Nnonye v Anyichie (2005) 2 NWLR (pt. 910) 623.
Also, where jurisdiction of a Court is challenged over a matter or suit, that Court must consider the averments of the plaintiff in his statement of claim filed before it, in order to decide whether it has jurisdiction to entertain it or not.”
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JURISDICTION OF COURTS- FACTORS THAT DETERMINES THE JURISDICTION OF A COURT.

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“In determining whether a court has jurisdiction, the constitution of the court, the subject matter and the procedure in instituting the action will be considered. The person presiding over the matter must be so qualified and competent, the subject matter must be matters that the law has made provision for the court to adjudicate on and the process by which the action is brought is within the law. This point the Supreme court emphasized in Nwachukwu vs. Nwachukwu & Anor (2018) LPELR-44696 (SC) per Onnoghen, CJN (as he then was) at pages 10-11 in these words:
“It is now settled law that jurisdiction is the life blood of adjudication in that any decision by a Court that lacks jurisdiction to hear and determine a matter is a nullity no matter how well conducted. See Madukolu vs Nkemdilim 1962 NSCC 374 at 379 – 380 .
When can it be said that a Court has jurisdiction to hear and determine a case. As stated earlier, the Supreme Court in the above cited case decided that for a Court to have the requisite jurisdiction to hear a matter:
(a) the Court must be properly constituted as regard numbers and qualifications of members of the bench, and no member is disqualified for one reason or another;
(b) the subject matter of the case is within the jurisdiction of the Court and there is no feature in the case that prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by due process of the law, and upon fulfilment of any condition precedent to the exercise of jurisdiction .”
These 3 conditions are necessarily applicable to determine whether a court has jurisdiction.”

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JURISDICTION OF COURT – GENERAL JURISDICTION OF STATE HIGH COURT

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“Let me quickly say here as mentioned in the cases above that jurisdiction is the life wire of adjudication but I must say that the subject of jurisdiction should not be used as an easy way out in challenging the decision of a court. Jurisdiction is not conferred on a court by the parties or by the court itself but rather by statutes. See Gafar vs. Kwara State Government & Ors (2007) LPELR-8037 (SC). The judicial powers of the lower court, the High court of Lagos State is in section 6(2)(5) of the 1999 Constitution of the Federal Republic of Nigeria. The jurisdiction of the same court is found in Section 272 (1) of the Constitution. This section provides for the general jurisdiction of the State High Court. The section provides:
“Subject to the provisions of section 251 and other provisions of the constitution, the High court of a state shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty’ liability, privelge, interest, obligation or claim is in issue……”
The state High court has jurisdiction over land matters such as the one involved in this appeal. See Okulate & Ors vs Awosanya & Ors (200) 1 SC 107; Omotesho & Ors vs Abdullahi & Ors (2008) 3 FWLR (pt 431) 4373; Ademola vs Adelayo (supra); Okonkwo & Ors vs Okonkwo & Ors (2010) 14 NWLR (pt 1213) 228; Sadikwu vs Dalori (1996) 5 NWLR (pt 447) 151.”

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ALIENATION OF LAND – WHETHER ALIENATION OF LAND CAN BE DONE WITHOUT THE CONSENT OF THE GOVERNOR

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“By the provision of section 22 of the Land Use Act, no alienation of land can be done without the consent of the Governor. The section provides thus:
“ (1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained:…..”
Section 26 on the other hand makes any transaction which is not in line with the provisions of the Land Use Act null and void. I reproduce section 26 of the Land Use Act for completeness:
“Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”

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JURISDICTION OF COURT – EXCLUSIVE ORIGINAL JURISDICTION OF THE HIGH COURT

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The section provides thus:
“39. (1) The High Court shall have exclusive original jurisdiction in respect of the following proceedings-
(a) proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of occupancy;
(b) proceedings to determine any question as to the persons entitled to compensation payable for improvements on land under this Act.
(2) All laws, including rules of court, regulating the practice and procedure of the High Court shall apply in respect of proceedings to which this section relates and the laws shall have effect with such modifications as would enable effect to be given to the provisions of this section.”
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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended) Land Use Act

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