Hembadoom Tortya V. Wurukum Village Market Women Multi-purpose Co-operative Society Limited & Anor. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JA’AFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Makurdi High court of Justice delivered on the 23rd of June, 2006 in Suit No.MHC/117/2006.

The plaintiffs, now the respondents, had sued the appellant in suit No.MHC/117/2006 seeking for the following reliefs:-

a. “An order setting aside the judgment of this Hon. Court in suit No.MHC/62/2006 dated 04/05/2006.

b. An order restraining the defendant from further flouting the order of suspension imposed on her, or re-opening her stall on account of the judgment of this Honourable court in Suit No.MHC/62/2006 dated 04/05/2006.

c. General damages for defamation of the character of the plaintiff in the sum of N400,000 (four hundred thousand naira) only.

d. An other (order) of injunction restraining the defendant from further defamation of the plaintiffs.”

The appellant filed a preliminary objection challenging the jurisdiction of the trial court, which objection in ruling dated 23rd June, 2006 was dismissed. Dissatisfied, the appellant following leave granted by this court on the 2nd day of May, 2007 filed an appeal against the trial Court’s ruling.

Arising out of the notice and Grounds of appeal against the dismissal of the ruling dated 23rd day of June, 2006, the appellant has formulated one issue for determination. The issue is whether the trial court has jurisdiction in suit No.MHC/117/2006 to set aside the decision in suit No.MHC/62/2006 delivered on the 4th day of May, 2006. As for the respondent the issue is whether or not the trial court has jurisdiction to set aside its own judgment, or judgment of a court of coordinate jurisdiction, which is a nullity or was obtained by fraud.

Thus the issue formulated by the appellant is the same as the issue formulated by the respondent though differently worded. Therefore considering the issue as formulated by the appellant in appellant’s brief of argument suffices in determining their appeal.

Thus the sole issue is whether the trial court has jurisdiction in suit No.MHC/117/2006 to set aside the decision in suit No.MHC/62/2006 delivered on the 4th day of May, 2006.

It has been conceded by the appellant’s counsel that any court of record has an inherent power to set aside its judgment or order which is a nullity. He has however conceded that a party seeking such relief must show clearly to the court his grounds for the relief that the previous case sought to be set aside was obtained by fraud or was a nullity. The averment of the appellant is that this is not the case in this instance. That the respondents did not place particulars before the court to show that the decision sought to be set aside is a nullity. It was averred that in this case no such particulars were placed before the Court to enable it form an opinion that Suit No.MHC/62/2006 was a nullity or was obtained by fraud, relying on the case of Auto Import, Export v. Adebayo & 2 Ors. (2002) 12 SC (pt.1) 58, 170.

He maintained that the failure of the respondents to place such particulars before the court which are apparent to enable the court form an opinion is fatal. He has maintained that the court cannot go into trial of the case or voyage of discovery of the fraud or to determine whether the case is a nullity, for in doing that it will amount to the court sitting on appeal on the decision in suit No.MHC/62/2006 of High Court 5 Makurdi, which the trial court lacks the judicial competence to do relying on the case of Ndi & Anor. v. Savannah Bank Plc (2003) 1 FR 1 @ 72 where the Court held as follows:

“it is trite that no judge has the jurisdiction or the competence to set aside or to review the decision of another court of coordinate jurisdiction, for it would amount to sitting on appeal on that decision”