The State V. The Customary Court Owerri Urban & Ors (2016)
LawGlobal-Hub Lead Judgment Report
PETER OLABISI IGE, J.C.A.
This is an appeal against the decision of Imo State High Court contained in the Ruling of Honourable Justice NONYE OKORONKWO now JCA, delivered on 30th day of June, 2009 by which he set aside the Order of Certiorari made by the same Imo State High Court CORAM CHIOMA NWOSU IHEME J. now JCA.
The Order of Certiorari aforesaid was made by HON. JUSTICE CHIOMA NWOSU IHEME in Suit No. HOW/66M/2001. The Order reads:
?BETWEEN:
THE STATE
EX PARTE
CHIEF ODOHA IHIA ==== APPLICANT
FIDELIS ELUMA
AND
THE CUSTOMARY COURT, OWERRI URBAN ? RESPONDENT
ORDER OF COURT
Upon reading through the Motion on Notice for certiorari filed on 29/10/02 and the supporting affidavit sworn to by Chief Odioha Ihia, the 1st Applicant and after hearing J. C. Uwazuruonye of Counsel for the Applicant and whereas the Respondent neglected to appear in Court or file any Counter Affidavit though it was duely served.
THE COURT ORDERED AS FOLLOWS:
(1) That the ruling of the President of the Customary Court of Appeal while sitting alone on 26/2/96 be and is hereby
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declared void and unconstitutional.
(2) That the order of the Customary Court, Owerri Urban in Suit No. CC/OU/59/92 delivered on 9/4/96 which derived its authority and jurisdiction from the void and unconstitutional ruling of 26/2/96 made by the President of the Customary Court of Appeal be and is hereby declared a nullity.
(3) That the Order of the Customary Court, Owerri Urban in Suit No. CC/OU/59/92, delivered on 9/4/96 including the Order of the Court dismissing the case of the Applicants in the same Suit CC/OU/59/92 is accordingly removed to this Court for the purpose of being quashed.
(4) That the Order of the Customary Court, Owerri Urban and the Order dismissing the case is hereby quashed.
ISSUED AT OWERRI UNDER THE SEAL OF COURT AND HAND OF THE PRESIDEING JUDGE THIS 19TH DAY OF FEBRUARY, 2002.
CHIOMA NWOSU IHEME MRS.
JUDGE
S. C. NJOKU
ASSISTANT CHIEF REGISTRAR.?
By a Motion on Notice dated at Owerri the 1st day of February, 2007 and filed same date. The Applicant?s:
1. NWAUGO
2. JULIUS OSUIGWE
(For themselves and on behalf of Umuagu family of Obitti to set aside
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the Ruling and Order of the Honourable Court made on the 20th February, 2003 for infringing on their Fundamental Right to fair hearing)
Prayed the High Court of Imo State for the following Order viz:
?Setting aside the Ruling and Order of the Honourable Court delivered and made on the 19th day of February, 2003 in that same was made in breach of the Constitutional Right to fair hearing as guaranteed under the Constitution.?
The ground upon which the application was founded is as follows:
?a) The Ruling and Order sought to be set aside were made in a matter affecting the Legal interests of the Applicants without hearing the Applicants contrary to Section 36(1) of the 1999 Constitution.?
The application was supported by 17 paragraph Affidavit to which three Exhibits were attached. The Appellant filed 21 paragraph Counter Affidavit to which an Exhibit was attached.
The Motion was duly heard after which a considered Ruling was delivered by NONYE OKORONKWO J., on 30th day of June, 2009. The Learned trial Judge made the following findings and set aside the Order of Certiorari earlier made by the Court
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(NWOSU- IHEME J.) thus:
?In this case, the applicants in this Motion to set aside the Certiorari Proceedings were not joined by the applicants in the Certiorari Proceedings even when they were defendants in the Customary Court in Suit No. CC/OW/59/92 in which an Order of dismissal of the suit was made in their favour neither was the President Customary Court of Appeal joined even when the Order of transfer made by the President was the first subject of the Certiorari Proceedings and Order.
In the Proceedings for Certiorari, the applicants herein to set aside the Certiorari Proceedings are necessary Parties because they were the defendants in the case sought to be quashed by Certiorari as well as the President of the Customary Court of Appeal whose Order was also sought to be quashed by the same Certiorari Proceedings. It is said that a necessary Party is a person who will not only be affected by the result of the case but the Court cannot effectively and completely determine the question it is called upon to decide without him. See Ige v. Farinde (1994) 7 NWLR (Pt. 354) 4. I agree and hold that the applicants herein as well as the President
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Customary Court of Appeal are necessary parties who ought to be made parties by the applicants in the Certiorari Proceedings or by the Court if sufficient materials have been placed before it.
The Law is that a Proceedings conducted without joining necessary parties is a nullity and a person affected thereby has a right to apply to set it aside ex debito Justitiae. See Okafor V. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659, 680.
It is also Law that in such circumstance, the Court that made the Order can upon a proper application set it aside. It is not a case of overruling itself or reviewing its own judgment, No, it is rather like correcting a fundamental slip or error in the proceedings. It is like setting aside a judgment obtained by Fraud. See U.T.C. V Pamotei.
In the final analysis, the judgment of this Court made on 19th February, 2003 in which the ruling of the President Customary Court of Appeal of 26/2/96 and the Order of the Customary Court Owerri Urban of 9/4/96 in Suit No. CC/OW/59/92 were quashed by Certiorari is hereby set aside.?
The Appellant FIDELIS ELUMA was aggrieved by the Order setting aside the Certiorari
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Orders earlier made in his favour and has now appealed to this Court vide his NOTICE OF APPEAL dated 21st day of August, 2009 filed on the 24th day of August, 2009 contain six (6) grounds which without their particulars are as follows:
?GROUND 1.
The Learned Judge erred in Law in hearing the application of the Applicants/Respondents to set aside the Ruling of a Judge of co-ordinate jurisdiction made on 12th February 2003 when he had no jurisdiction to do so.
GROUND TWO (2) Error in Law:
The Learned Judge erred in Law in hearing and granting the application by the Applicants/Respondent to set aside the Order of Certiorari made on 19th February, 2003 when they were not parties to Suit NO. HOW/66M/2001 as filed by the 1st Respondent/Appellant in 2001.
GROUND THREE (3):- Error of Law:
The Learned Judge erred in law when he held as follows:-
?In the proceedings for Certiorari, the applicants herein to set aside the Certiorari proceedings are necessary parties because they were the defendants in the case sought to be questioned by Certiorari as well as the President of the Customary Court of Appeal whose Order was
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also sought to be quashed by the same Certiorari Proceedings.?
GROUND FOUR (4):- Error in Law:
The Learned Judge erred in Law when he assumed jurisdiction to set aside the Order of Certiorari made on 19th February, 2003 by holding as follows:-
?The Law is that a proceeding conducted without joining necessary parties is a nullity and a person affected thereby has a right to apply to set it aside, exdebito Justiciae. It is also the Law that in circumstance the Court that made the Order can upon a proper application set it aside. It is not a case of over ruling itself or reviewing its own judgment. No it is rather like correcting a fundamental slip or error in the proceedings. It is like setting aside a judgment obtained by fraud.?
GROUND FOUR (5):- Error in Law:
The Learned judge erred in Law in setting aside the Order of Certiorari made by Hon. Justice Chioma Nwosu-Iheme on 19, February 2003 when the said judgment was neither exhibited before the Judge nor the proceedings before the said judgment.
GROUND SIX (6):-Error in Law:
The Learned Judge erred in law in setting aside the judgment of learned Justice
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Chioma Nwosu-Iheme (now JCA) made on 19th February 2003 without considering the case of the 1st Respondent/Applicant in both his Counter Affidavit and Address before the Court thereby breaching his right to fair hearing.?
The Appellant filed his Appellant?s Brief of Argument dated 17th day of August, 2012 on 27th day of August, 2012. The said Brief was deemed properly filed on 22nd day of September, 2014 while, the 1st Respondent?s Brief of Argument dated 12th day of October, 2015 was filed on 3rd day of February, 2016. It was deemed properly filed on 3rd day of February, 2015. The Appellant filed Appellant?s Reply Brief dated 8th day of February, 2016 was filed on the same date.
The appeal was heard on the 11th day of May, 2016 when the Appellant?s Learned Counsel to the Appellant and 1st Respondent?s Learned Counsel adopted their Briefs of Argument.
The Learned Counsel to the Appellant J.C. UWAZURUONYE Esq., distilled three issues numbered A. B and C for determination. They are as follows:
(a) Whether the Court below was right in setting aside the Ruling of a Judge of co-ordinate jurisdiction when the
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Court below has no jurisdiction to do so.
(b) Whether the Court below was right in hearing and granting the application to set aside the order of certiorari made on 19th February, 2003 whereas the Applicants/Respondent were not parties to Suit No. HOW/66M/2001 and there was no application to join as a party or even leave to do so, the period of appeal having elapsed.
(c) Whether the Court below was right in setting aside the Order of Certiorari made by His Learned brother Chioma Nwosu ? Iheme J. (as he then was) when neither judgment and/or proceedings was exhibited before him nor did he consider the case of the 1st Respondent/Appellant in both his Counter- Affidavit and Address before the Court.
The 1st Respondent?s Learned Counsel JOE ONYENAKAZI Esq., formulated five issues for determination viz:
1. Was the Lower Court?s jurisdiction to hear the application to set aside the ORDER OF Certiorari affected by the effluxion of time (Ground 1).
2. Was the Lower Court right to hear and grant the application to set aside the Order of certiorari, when the applicants WERE not parties to the application for certiorari, and
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when they did not make any application for joinder. (Grounds 2 and 3).
3. Was the Lower Court right to hold that a party, affected by proceeding from which he was wrongfully excluded has a right to apply to set it aside ex debito justitiae. (Ground 4).
4. Was the learned Trial Judge right to set aside the Order of Hon. Justice Nwosu there (as she then was) when the judgment and proceedings were not produced? (Ground 5).
5. Was the Appellant denied fair hearing in the Lower Court.
The appeal can be determined on the questions formulated by the Appellant.
ISSUE ONE (A)
Whether the Court below was right in setting aside the ruling of a Judge of Co-ordinate jurisdiction when the Court below has no jurisdiction to do so.
(GROUNDS 1 and 4).
The Learned Counsel to the appellant J. C. Uwazuruonye Esq., contended that the legal fulcrum upon which the entire matter revolves is a question of jurisdiction. That there has been pervasive presence of the absence of jurisdiction in the conduct of the entire proceedings leading to the certiorari proceedings and Ruling of the Court below on appeal to this Court. The Learned Counsel to the
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appellant traced the matters leading to the certiorari proceedings. That on 26/2/96 the president of Customary Court of Appeal Imo State sat alone as a Court and gave a Ruling dismissing Appellant?s application to that Court for the transfer of Suit No. CC/OU/59/92 to another Customary Court in Imo State and also made an Order of accelerated hearing of the Suit before the 2nd Respondent herein. That based on the Ruling of the President of Customary Court, the 2nd Respondent, that is the Customary Court Owerri Urban on 9/4/96 made an order dismissing Suit No. CC/OU/59/92 in which Appellant herein was one of the Plaintiffs.
He contended that the President of Customary Court of Appeal cannot sit alone and take decision on a matter in view of Section 248 of the 1979 Constitution, which says Customary Court of Appeal will be duly constituted if consists of at least three Judges of that Court.
That it was upon the lack of jurisdiction on the part of the President of Customary Court and on the part of Customary Court Owerri Urban that relied on the Ruling of the President of Customary Court dismissing Appellant?s case, that the Appellant applied
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for order of certiorari which was granted by Hon. Justice Chioma Iheme-Nwosu on 19th February, 2003.
That the application of the 1st Respondent to set aside the order of certiorari was made on 1st February, 2007, that is four years after the ruling of IHEME NWOSU, J, of 19/2/2002. The Learned counsel to Appellant contended that even if it is taken for granted that they could apply to set aside the order of certiorari, then 1st Respondent must in accordance with Orders 2 Rule 2(1) and 22 Rule 5 of the Imo State High Court (Civil Procedure) Rules 1988 which was in use at the time apply for extension of time for leave to appeal if they failed to apply within six weeks after the order sought to be set aside was made. That the Rules enjoined them to apply for the extension of time within a reasonable time but in this case they did not do so even though they were hopelessly out of time.
That the Lower Court therefore lacked the jurisdiction to entertain the application of the Applicants for setting aside of order of certiorari. He relied on the case of SAUDE VS. ABDULLAHI (1989) 4 NWLR (PART 116)387 at 422 and CHUKWUOGOR VS CHUKWUOGOR (2006) 7 NWLR (PART
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979) 302.
That where the law prescribes the manner of doing a thing as a precondition for the performance of another, failure to follow the procedure laid down will render subsequent act avoid. He strongly submitted that the Learned trial Judge had no jurisdiction to set aside the certiorari order.
In response to the above, submissions, J. M. E. Onyenakazi Esq. for 1st set of Respondent stated that a cursory look at grounds 1 and 4 of the Notice of Appeal did not reveal any mention of Order 22 Rule 5 and Order 2 Rule 2(1). That non compliance with Order 22 Rule 5 and 2(1) did not form part of Appellant?s complaint. That Appellant cannot extend the scope of grounds of appeal vide Brief of Argument. That particulars of error can also not be used. That the issue of the said Rules of court were not raised at the Lower Court and that they now border on raising fresh issue without the leave of this Court. He relied on the cases of UDOAKA VS ASUGUO (2008) 9 NWLR (PART 1091) 15 at 25H and OLORUNTOBE ? OJU VS. ABDULRAHEEM (2009) 13 NWLR (PART 1157) 83 at 136 D.
That the submission that the 1st Respondents ought to have approached the Court
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vide an appeal lacks substance and merit. That it is trite law that any person affected by an order, that he considers a nullity has the right ex debito justitiae to approach the Court that made the order to reverse same relying on SKEN-CONSULT V. UKEY (1981) 1 SC 6 and EKE V. OGBONDA (2006) 18 NWLR (PT 1012) 506 at page 526 A ? D.
That this is in addition to any right of appeal which the person may also have. That the person involved has right to choose any of the two options available to him. That if he chooses alternative remedy to an appeal, he must wait until time for appeal has expired. He cited and relied on ACB PLC VS. NWAIGWE (2011) 7 NWLR (PT. 1243) 380 at 397 A ? C.
That the Appellant excluded the 1st set of Respondents from proceedings affecting their interest and that the purpose was to steal a match and took undeserved advantage of 1st set of Respondents. That they were right in going to Imo High Court to complain about infringement of their right to fair hearing that the appeal has nothing to do with jurisdiction. He relied on the case of MADUKOLU VS. NKEMDILIM (1962) 1 SCNLR 341 to contend that the Appellant complaint did
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not fall within the conditions stipulated in that case to show lack of jurisdiction on the part of the trial Judge.
The Respondents are of the view that on the whole the Lower Court was right to hear the application brought before it as all conditions necessary to ground jurisdiction were present. He relied on the case of ENYINNAYA ONUEGBU & ORS V. GOV. OF IMO STATE unreported CA/OW/215/2011 and SS NIG LTD. VS. USHIE (2009) 6 NWLR (PART 1166) 158 at 166 E.
He urged the Court to resolve the issue against the Appellant.
Now pursuant to Section 270(1) and 2 of the 1999 Constitution there is only one High Court for each of the states in the Federation of Nigeria whose jurisdiction is shared by all JUDGES of the said High Court in the states notwithstanding that there are various Divisions of the High Court in each of the states in the country. Thus any Ruling, decree, judgment or order made by any of the Judges of the High Court of Imo State of Nigeria remains the Ruling, decree, judgment or Order of Imo State High Court. They remain sacrosanct or extant until set aside by an Appellate/Court. See SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LTD
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VS. CHIEF TIGBARA EDAMKUE & ORS (2009) 14 NWLR (PART 1160) 1 at 25 where OGBUAGU JSC said: –
?I am aware there is only one High Court in a State with Judicial Divisions, created for administrative convenience or purposes. The Judges of the Federal High Court sit in different States or separate Courts as in the Federal Capital Territory. Both Courts are bound by one Statutory Rule of Court. See: the cases of S. O. Ukpai v. Okoro & Ors.
And on pages 27 F ? G of the report his Lordship said:
?I note in fact, that the said Orders of Sanyaolu, J., made on 7th February, 1995, amending the capacities the respondents prosecuted both suits, were not appealed against. The effect is that those Orders subsist in law. See: the case of Chief Ogunyade v. Oshunkeye & Anor. (2007) 15 NWLR (Pt. 1057) 218 @ 257 cited and relied on by the respondents their brief (it is also reported in (2007) 7 SCNJ 170).
In the concurring Judgment of Omoghen, JSC in the case of Chief Ogunyade v. Oshunkeye & Anor. (2007) 15 NWLR (Pt. 1057) 218 @ 257, cited and relied on it paragraph 3.3 (6) at page 7 of the respondent?s brief, His
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Lordship stated inter alia:
as the Law is settled that any point(s) of law or facts not appealed against is deemed to have been conceded by the party against whom it was decided and that the said point(s) remain(s) valid and binding on the parties.?
And on pages 28 F ? H to 29 A His Lordship said:
?However, I am aware and concede on this also settled, that no Judge can or is entitled to reverse, vary or alter the Order or decision of another Judge of co-ordinate jurisdiction except on issue of jurisdiction. See: the cases of Akporue & Anor. V. Okei (1973) 12 S. C. 137; (1973) 3 ECSLR 1010 @ 1014; Orewere & Ors. V. Abiegbe & Ors. (1973) 3 ECSLR 1164 @ 1167 ? that the proper action is to go on appeal; National Insurance Corporation of Nigeria v. Power Industrial Engineering Co. Ltd. (1990) 1 NWLR (Pt. 129) 697 @ 707 C. A. ? per Akpata. JCA (as he then was). In other words, in the absence of statutory authority, one Judge has no power to set aside or vary the order of another Judge of concurrent and co-ordinate jurisdiction. See: the cases of Amanambu v. Okafor (1966) 1 ALL NLR (Pt. 1) 475
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cited in the case of Wimpey (Nig.) Ltd. & Anor. V. Alhaji Balogun (1986) 3 NWLR (Pt. 28) 324 @ 339. This is especially so when such Order has been entered or drawn up.?
The Learned trial Judge was in serious error in granting the relief sought by the 1st set of Respondents upon their motion dated and filed 1st February, 2007, thereby setting aside and vacating the Order of certiorari made by the Honourable Justice CHIOMA NWOSU ? IHEME (MRS) made on 19th day of February, 2003. The said Honourable Justice NWOSU ? IHEME had within her jurisdiction granted and made the said Orders in favour of the Appellant as ealier on reproduced in this judgment:
The Orders made are within the supervisory jurisdiction of the Honourable Justice NWOSU ? IHEME (Now JCA) as provided under Section 272(2) of the 1999 Constitution which provides:
?272 (2) the reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the Court in the exercise of its appellate or supervisory
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jurisdiction.?
See Hon. Ehioze Egharevba vs. Hon. Crosby Osadolor Eribo & Ors (2010) 9 SCM 121 at 137 C ? E per ADEKEYE JSC who said:
?Ordinarily our laws by virtue of Section 272 (2) of the 1999 Constitution our High Courts have the power to review administrative determinations of inferior tribunals, in that the High Court has an inherent jurisdiction to control all inferior tribunals not in an appellate capacity, but in a supervisory capacity. That control extends not only to seeing that it observes the law, but also that the inferior Tribunals keep within its jurisdiction. The control is exercised by means of a power to quash any determination by the tribunal which on the face of it offends against the law. This power is exercised in respect of administrative decisions of any inferior tribunals, on the grounds of illegality or procedural impropriety or irrationality. Okeahialam v. Nwamara (2003) NWLR pt. 835 pg. 597.?
?The Orders made by Honourable Justice Nwosu ? Iheme cannot therefore be said to be a nullity on the unfounded ground that the Ruling and the Order-sought to be set aside, according to 1st set of
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Respondents, were made in a matter affecting the legal interests of the Applicants without hearing Applicants contrary to Section 36(1) of the 1999 Constitution.
The 1st sets of Respondents did not exhibit the Certified True Copies of the Originating processes and other processes filed by the Appellants before Honourable Justice Nwosu ? Iheme but exhibited to 1st Set of Respondents motion as Exhibit GIII, the Orders made. There is nothing in the Orders therein contained showing that any of the orders was targeted against the 1st set of Respondents. Their rights and obligations were not shown to have been affected. The 1st Respondents were/are not parties to the proceedings and their rights as to whether they own or not owned the landed property in Litigation at the Customary Court was not before the High Court.
In any event if they seriously believed that the orders made affected their legal interest the avenue open to them is not and was not to take out a motion after four years to have the orders of Nwosu ? Iheme, J. set aside. The Order of Honourable Justice Nonye Okoronkwo (Now JCA) which set aside the order of NWOSU-IHEME,J., on the
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ground that 1st Respondents were necessary party who were not joined to the certiorari proceedings was made without jurisdiction. As a Judge of coordinate jurisdiction with Nwosu ? Iheme, J., now JCA he lacked the vires or jurisdiction to set aside the orders made on 19th day of February, 2003. It tantamount to sitting as appellate Court over the judgment validly given within the jurisdiction of a brother High Court Judge. See
(1) NATIONAL HOSPITAL, ABUJA & ORS VS. NATIONAL COMMISSION FOR COLLEGES OF EDUCATION & ORS. (2014) 11 NWLR (PT. 1418) 309 AT 334 D ? G PER YAHAYA, JCA WHO SAID:
?However, if the understanding of the Appellants is that their appeal includes this aspect, then I hold that it must fail because the trial Court had no jurisdiction to entertain the issues already decided and pronounced upon by the Federal High Court, Kaduna. The trial court was right that it could not grant the reliefs sought by the Appellants/Plaintiffs, since they bear directly on the judgment and orders of the Federal High Court, Kaduna. Furthermore, to grant the reliefs sought by the Appellants/Plaintiffs, would amount to the trial Court
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sitting on appeal and reversing the judgment of the Federal High Court, Kaduna. That would be wrong because a Court of coordinate jurisdiction cannot sit on appeal over its counterpart. The trial court had no jurisdiction to entertain the suit of the Appellants. Also tied to this, is the fact that in law, any interest based on a challenge (cannot appeal) of a decision of a competent Court which has not been appealed against, cannot be a valid interest enough, to ground locus standi. It was a wooly contention on the part of the Appellants to ground locus standi despite the unchallenged judgments and Order of the High Court, Kaduna.?
(2) LAWRENCE S. U. AZUH VS UNION BANK OF NIGERIA PLC (2014) 11 NWLR (Pt. 1419) 580 at 608 F ? H to 609 A ? C per KEKERE EKUN JSC who said:
?Where criminal charges are pending against an accused person, his right to freedom of movement pending the determination of the case may be curtailed by the Court seized of the matter or by a higher Court, depending on the nature of the offence. By the averment in paragraph 7 of the affidavit in support of the motion ex-parte, the Appellant had been granted bail
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by Court No. 5 of the same High Court. The enrolled order in respect thereof does not form part of the record before us. However, it is evident, from the reliefs sought, that the Respondent was not satisfied with bail conditions granted by that Court which led to the institution of the suit that gave rise to this appeal, whose sole purpose was to have the bail conditions varied by making them more stringent, and specifically to ensure that the Appellant remained within the country for the duration of his trial. In view of a subsisting order granting bail to the Appellant by a Court of co-ordinate jurisdiction, did the trial Court have the jurisdiction to vary the said order, or to sit on appeal over that order? The position of the law as stated by this Court in Witt & Busch Ltd v. Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1 at 25, para E.F.G. (2007) 5 ? 6 SC 121, per Ogbuagu, JSC, is as follows:
in the absence of statutory authority or except where the judgment or order is a nullity, one Judge has no power to set aside or vary the order of another Judge of concurrent and co-ordinate jurisdiction. ? that rationale or
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reason for this is that there is only one High Court in a State.?
A judgment or, Ruling of a coordinate jurisdiction can only be set aside by another Judge of same Court on application of the person against whom it was made under certain stringent conditions stated in the case of CHIEF EMMANUEL BELLO VS INEC & ORS 2010 3SCM 1 AT 28H TO 29 A ? B PER MAHMUD MOHAMMED JSC NOW CJN who said:
?I may observe at this stage that the misconceived course taken by the Respondent in this case is similar to the course adopted by the Plaintiffs in the case of Okoye v. Nigerian Construction and Furniture Co. Ltd (1991) 6 N.W.L.R (Pt. 199) 501 at 332 where this court held that failure to join as party a person who ought to have been joined will not render the proceedings a nullity on ground of lack of jurisdiction or competence of the Court. Akpata JSC specifically stated the position as follows:
?In my view failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, the irregularity may lead to unfairness which may result in
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setting aside the judgment on appeal. Setting aside the judgment or making an order striking out the action or remitting the action for retrial in such circumstance that will not be for lack of jurisdiction or on the basis of the judgment being a nullity. The trial itself is incompetent to review the judgment, more so another Court of co-ordinate jurisdiction.?
On page 54 55A ADEKEYE, JSC also said:
?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 to set aside its judgment without a statutory provision enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in circumstance where-
(a) The writ or application was not served on
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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?
Underlined mine.
Recently in the case of MR. AKINFELA FRANK COLE VS MR. ADIM JIBUNOH & ORS (2016) 4 NWLR (PART 1503) 499 at 521 C ? H the apex Court in the land reaffirmed the position stoutly when GALADIMA, JSC said:
?A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or Order made by another Court of the same hierarchy. See: Chief Gani Fawehinmi v. A. G., Lagos State (No. 1) (1989) 3 NWLR (Pt. 112) 707 at 724, paras. C ? D where the Court held:
?The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court even if the judgment
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of Longe, J. were a nullity the proper way to set it aside is by an appeal not be review before a Court of co-ordinate jurisdiction? it seems to me that, in view of the provision of the Constitution, which carefully shares jurisdiction to the various Courts? Only the Court vested with the particular jurisdiction can interfere with the decision of another Court.?
The ruling of the trial Court that it has jurisdiction to entertain the present suit is due to the averments of fraud contained in the statement of claim, whereas the substance or issue in the suit is a challenge and a disguise to set aside the decision and auction carried out by virtue of an order made by a Court of coordinate jurisdiction in the earlier suit No. ID/1082/90. This is not proper.?
The Appellant?s Learned Counsel is also on a solid ground when he opined that the 1st set of Respondents did not even meet the conditions for setting aside the judgment of Nwosu ? Iheme J., assuming they could even apply to set it aside in that they failed to comply with Order 22 Rule 5 and Order 2 Rule 2(1) of the Imo Sate High Court (Civil Procedure) Rules 1988
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which was the extant Rule at the material time.
The judgment/Orders made by Nwosu ? Iheme J. remain subsisting and binding on the parties concerned by the Orders until they are set aside on appeal. See:
ALHAJI M. B. BUHARI AWODI & ANOR VS MALLAM SALU AJAGBE (2014) 12 SCM (PT. 2) 181 at 195 F per OKORO, JSC who said:
?As at the time of writing this judgment, there is no appeal against the findings of the Court below quoted above, the effect is that both parties are bound by the said finding of the Lower Court.?
Issue 1 is resolved in favour of the Appellant.
I will take Issues 2 and 3 together.
ISSUE 2(B)
ISSUE 3 (C)
The bone of contention under Issue 2 is whether the Lower Court was right in setting aside the Order of Certiorari made on 19-2-2003 when the 1st set of Respondents were not parties to Suit HOW/66M/2001.
On what makes a person a necessary party the Learned Counsel to the Appellant relied on the Case of GREEN VS. GREEN (2001) F.W.L.R. (Pt. 76) 795. That Learned trial Judge misconstrued the scope and essence of a Writ of Certiorari which led, according to Appellant the decision that
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the 1st set of Respondents were denied fair hearing. He relied on the Case of NWAOBOSHI VS. MILAD, DELTA STATE (2003) 1 NWLR (PART 831) 305 at 318.
He submitted that Writ of Certiorari does not lie against individuals or against the executive acts and so does not avail the Applicants/Respondents to contend that the Certiorari Proceedings in Suit No. HOW/66M/2001 denied them of fair hearing and on account of which they could apply to have the Order of NWOSU IHEME, J., set aside. He submitted that non joinder or failure of parties or intervener to apply for joinder will not be fatal to the proceedings. He urged this Court to resolve Issue 2 in favour of Appellant.
On Issue 3 the Learned Appellant Counsel contended that since by the findings of the Lower Court the said Court on page 49 of the record of appeal that the grounds upon which the application for Certiorari was brought were not given in this proceedings neither was the judgment delivered in the Certiorari Proceedings included in this present proceedings, the Learned Counsel for the appellant wondered upon what materials did the trial Court (Okoronkwo J.) anchored his decision to set aside the
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judgment of his Learned brother.
That the trial Judge also failed to give any consideration to the Counter Affidavit of the Appellant against the Motion to set aside and the address of Learned Counsel to Appellant. He finally urged this Court to hold that the 1st set of Respondents ought to have applied to be joined as interested party before applying for the Ruling to be set aside since the judgment of NWOSU IHEME J., was not a default judgment.
In response to Issue No. 2, the Learned Counsel to the 1st set of Respondents submitted that the submissions of Appellant?s Learned Counsel are utterly misplaced. That the reason while the 1st set of Respondents sought to quash the Order of Certiorari was because they were not made parties because the proceedings were conducted in breach of fair hearing and 1st set of Respondent?s right to fair hearing having been breached gave right to 1st set of Respondents to have the Order set aside as a matter of course.
He cited and relied on the cases of:
1. ANPP V. INEC (2004) 7 NWLR (Pt. 871) 36.
2. OKAFOR V. AG. ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659 at 680.
3. IYOHO VS. EHIONG
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(2007) 11 NWLR (PT. 1044) 31.
4. ANAEKWE VS. UMEANO (2009) 5 NWLR (Pt. 1135) 419.
That this is not a case of mere non-joinder but a case of breach of the constitutional requirements of fair hearing. That the case of GREEN VS. GREEN (1987) 3 NWLR (Pt. 61) 480 is unhelpful to the Appellant.
On Issue 3 as to whether the Learned trial Judge was right in setting aside the Order of Certiorari when the judgment and proceedings relating thereto were not produced, the Learned Counsel to the 1st set of Respondents contended that the Appellant did not cite a single case to support his submissions. He again stated that the only case cited is DAGACI OF DERE V. DAGACI OF EBWA (2006) 7 NWLR (Pt. 979) 382 which he said has nothing to do with Appellant?s argument. That the Law enjoins a person who desires the Court to exercise its discretion on his behalf must place sufficient materials before the Court. He relied on the case of BAMAIYI VS. BAMAYI (2005) 15 NWLR (Pt. 948) 334. According to the Learned Counsel to 1st set of Respondents they produced to the Lower Court the following:
1. Particulars of Claim in the Customary Court showing them to be
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parties.
2. They produced the Civil Summons to them and transfer Order all showing that they have interest in the Litigation.
3. That they finally produced the Order of Certiorari by which the Order dismissing Appellants Case in the Customary Court was quashed.
He concluded that the 1st set of Respondents have thereby produced enough materials before the Lower Court to enable it exercise its undoubted discretion in favour of the 1st set of Respondents.
It has been decided in numerous cases that failure or non joinder of a party to a proceeding will not vitiate the proceeding and cannot render it incompetent as it does not affect the competence of the court concerned to adjudicate on the matter or issues in controversy in the action See the case of UNION BEVARAGES V. PEPSI COLA (1994) 2 SCNJ 157 at 173 where the Supreme Court per ADIO JSC said
?Proceedings will not be a nullity on the ground of lack of competence of the Court or lacks of jurisdiction where a Plaintiff fails to join a party who ought to be joined. In such a case, the Court may deal with the matter in controversy so far as regards the rights and interests of the
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parties actually before it.?
The person to be sued must in the real sense of it be a necessary party whose presence is actually needed to enable the Court to effectually and completely determined all issues in controversy in the case.
I am of the view that the 1st set of Respondents were not at all necessary parties in the Certiorari Proceedings which is targeted against the excess of jurisdiction or lack of it of the Customary Court and the President of the Customary Court of Appeal. The Orders contained in the decision of NWOSU IHEME J., do not affect the rights and obligations of the 1st set of Respondents.
I agree with the submissions of the Learned Counsel to the appellant to the effect that 1st set of the Respondents were not and are not necessary parties in the certiorari proceedings and that if the Respondents feel aggrieved by the Orders of NWOSU ? IHEME J they have their right in appeal against the decision and not for setting aside of the Orders of NWOSU IHEME J, which were made within the jurisdiction conferred by the law and the Constitution of the Federal Republic of Nigeria 1999.
?The proceeding in contest is
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within the penumbra of prerogative writs and not ordinary Civil Proceedings. It is the vires of the Customary Court to hear the land matter and the power of transfer of the case as exercised by the President of Customary of Court of Appeal that were the subject matter of the certiorari proceedings and Not for a determination of who owns the land in dispute between the parties in the Customary Court.
On Issue 3 as to whether the trial Court could have adjudicated on the motion brought before it by 1st set of Respondents in the absence of processes in the certiorari proceedings before NWOSU ? IHEME J., I am of the view that the Learned trial Judge was not seised of the facts culminating in the Orders of NWOSU ? IHEME J, as stated by him. Courts of law do not operate in realms of speculations or conjectures. I am of the view, with profound respect, to the Learned trial Judge, that he ought not to have exercised his discretion in favour of 1st set of Respondents since the materials provided have been shown to be inadequate.
?Issue 3 is also resolved in favour of the Appellant.
The Appellant?s appeal has merit and Appellant?s
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appeal is hereby allowed.
The Ruling of the Imo State High Court delivered on the 30th day of June, 2009 by Honourable Justice NONYE OKORONWO is hereby set aside. In its stead an Order is hereby made dismissing the 1st set of Respondents MOTION ON NOTICE dated and filed on 1st day of February, 2007.
The 1st set of Respondents shall pay to the appellant costs assessed at N30,000.00 (Thirty Thousand Naira).
Other Citations: (2016)LCN/8831(CA)
