Christopher Onjewu V. Kogi State Ministry of Commerce & Industry & Ors. (2002)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE J.C.A.

On the 15th June, 2000, the Plaintiff filed a suit which was agreed to be placed under the undefended list for hearing under the relevant rules of the High Court of Kogi State. It was holden at Lokoja Mr. Christopher Onjewu the plaintiff claimed a liquidated sum in the following:-

“1. The Plaintiff claims against the Defendants the sum of N14,541,505.53k (fourteen million, five hundred and forty-one thousand, five hundred and five naira, fifty three kobo only) being the money owned by the 1st Defendant to the plaintiff as a result of consultancy services rendered by the Plaintiff to the 1st Defendant for the Construction of a permanent Trade Fair Complex at FELELE LOKOJA.

2. 10% interest per annum on the judgment debt from the date of Judgment until the final liquidation of the judgment debt.”

Before considering the case 1st and 2nd Defendants filed an application on Notice challenging the competency of the suit and urged the court to strike out the suit. The prayer/ground reads thus:-

(a) That the Consultancy Agreement between the Plaintiff and the Defendants Exhibit “A” to the Affidavit in support of the writ contains an arbitration clause.

(b) The dispute has not been submitted to Arbitration before the issuance of the writ.

Learned Counsel were heard by the Court and all their arguments and submissions received by that court after which the trial court entered judgment in favour of the plaintiff, now the Appellant in the sum of N8,701,448.00k admitted by the 1st Respondent together with 10% interest per annum on same out of the main claim of the N14,541,505.53k. The court then stayed proceedings in the main case to enable the parties contest the balance. It was submitted that the position taken by the trial court is faultless, having considered the pronouncement of Aniagolu JSC in the case of Mosheshe General Merchant Ltd. Vs. Nigerian Steel Ltd. (l987) 2 NWLR (part 55) 110 at p120. Consequently the Appellant in order to enforce the judgment sum of N8,701,448 00k, filed a garnishee proceedings on 22nd January, 2001. It was on 19th June, 2001 that the trial court made an order nisi directing the 3rd Respondent to appear in court to show cause why it shall not be ordered to pay the judgment debt to the appellant. Failure to appear in court on 12th July, 2001 the learned trial judge made an order absolute directing the 3rd Respondent to pay N8,701,448.00k to the Appellant in two equal instalments by Bank Drafts. It has never been in doubt, and no body contested the position, that the Kogi State Government has money standing to its credit with the First Bank of Nigeria PLC.

That being the case and after making the order absolute the three Respondents herein filed Motions on the 13th and 16th of July, 2001 to set aside the order absolute on the ground that the Appellant did not secure and obtain the consent of the Attorney-General of Kogi State as required under Section 8(3) of the State proceedings Edict, 1988 and also Section 8(4) of the Sheriffs and Civil Process Law before the order absolute was made on 12th July, 2001.

The trial court after listening to the arguments and submissions of all the counsel in the motions act aside the order absolute earlier on made. He did that in a considered ruling delivered on 2nd, August, 2001. His words:-

“Be that as it may, it is clear from the laws and the decided cases referred to that the consent of the Attorney-General was not obtained before the order absolute was made by this Honourable court on the 12th July, 2001.

The failure of the judgment creditor to comply with the condition precedent deprived this court of the jurisdiction to hear the application and make the absolute order complained against.. An order made without jurisdiction is null and void and should be set aside…” It is trite that an order which is a nullity on ground of common mistake, fraudulent misrepresentation, e.t.c can be set aside by the same court which made the order- See Vulcan Gases v. Gesdischast (supra) and Okafor VS. Attorney General of Anambru State (supra) cited by Mr. Fagbemi.

In the circumstances, I invoke the inherent jurisdiction conferred on this Honourable Court by Section 6(6) of the Constitution of 1999 and set 5 aside the order absolute made by me on the 12th day of July, 2001. Applications succeed. ”

The Appellant herein is not happy with the above ruling and appealed to this court and med two grounds of appeal as follows with their respective particulars: –

GROUND 1