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THE JUDGEMENT OF A COURT REMAINS BINDING UNTIL SET ASIDE BY AN APPELLATE COURT

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It is the law that a ruling or judgment of the court remains valid until it is set aside by an appellate court. The Ruling of Taiwo, J. of the Federal High Court, Ado Ekiti of 13/12/16 defroze the account of Ayodele Fayose from which the sum of N75,000,000.00 (Seventy Five Million Naira) being the professional fees paid to the Respondent for services rendered remains the extant decision. The said decision which the Appellant alleged to be perverse has not been set aside, it therefore remains the law, valid and binding, vacating an earlier order made by Idris, J. of the Lagos Division was the extant law as at the time the payment of N75,000,000.00 was made to the Respondent for services rendered. As rightly argued by the learned counsel to the Respondent, at the time the order was made by the lower court defreezing the account of the Respondent’s Chambers, the decision of Taiwo, J. was valid and subsisting until set aside by an appeal court or by the lower court itself if it acted without jurisdiction or in the absence of an aggrieved party. See, ROSSEK & ORS VS. ACB LTD & ORS (1993) LPELR – 2955 (SC) P. 104, PARAS. A – D, OKEZIE VICTOR IKPEAZU VS. ALEX OTTI & ORS (2016) LPELR – 40055 (SC) P. 20, PARAS. A – C, FIDELITY BANK VS. THE M.T. TABORA & ORS (2018) LPELR – 44504 (SC) PP. 6 – 14, PARAS. B – D. In OJIAKO & ORS VS. OGUEZE & ORS (1962) LPELR – 25 116 (SC) P. 31 PARAS. D – E, his lordship Brett, JSC on the validity of a subsisting judgment held that: “Where no question of nullity arises, once the judgment of any competent court is perfected it is valid until set aside by competent authority, and there can be no presumption against the validity of such a judgment.” See, also BEMDOO MINDI VS. THE STATE (2020) LPELR – 52897 (SC) P. 53, PARAS. B – E.

— C.N. Uwa, JCA.FRN v Ozekhome (2021) – CA/L/174/19

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NOT EVERY ERROR IN A JUDGEMENT WILL VITIATE IT

It is not every mistake or error in a judgment or decision that could vitiate such a decision as the mistake has to be shown to have led to a miscarriage of justice or materially or substantially affected the decision making to have such impact. See Owhonda v Ekpechi (2003) 9-10 SC 1 at 21; Mrs. Jumbo v R. S. H. P. A. D. A. (2005) 5 SC (Pt.11) 102 at 112. — M.U. Peter-Odili, JSC. Kwara Judicial Commission v Tolani (2019) – SC.63/2010

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JUDGEMENT IN REM VS JUDGEMENT IN PERSONAM

In Dike & Ors v. Nzeka II & Ors (1986) LPELR – 945 (SC), the Supreme Court held thusly – “It is therefore necessary to have a clear idea of the distinction between a judgment tin rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the Status of some particular thing or subject matter by a tribunal having the jurisdiction and the competence to pronounce on that Status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject-matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interests in the status of the property or person are concerned. That is why a judgment in rem is a judgment contra mundum binding on the whole world – parties as well as nonparties. A judgment in personam, on the other hand, is on an entirely different footing. It is a judgment against a particular person as distinguished from a judgment declaring the status of a particular person or thing. A judgment in personam will be more accurately called a judgment inter partes. A judgment in personam usually creates a personal obligation as it determines the rights of parties inter se to, or in the subject-matter in dispute whether it be land or other corporeal property or liquidated or unliquidated demand, but does not affect the status of either the persons to the dispute or the thing in dispute.”

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SUMMARY JUDGEMENT IS FOR DISPOSAL OF UNCONTESTED CLAIMS

In the instant case after the exchange of pleadings the respondent (as plaintiff at the trial court) brought an application for summary judgment under Order 11 Rules 1 and 2 of the High Court of Lagos State (Civil Procedure) Rules 1994. The summary judgment procedure is for disposing of cases which are virtually uncontested with dispatch. It applies to cases where there can be no reasonable doubt that the plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes of delay. It is for the plain and straight forward, not for the devious and crafty. See U.B.A. Plc Vs Jargaba (2007) 11 NWLR (Pt. 1045) 247 @ 270 F-H per I.T. Muhammad, JSC; Sochipo Vs Leminkainen OY (1986) 1 NWLR (Pt. 15) 230: Adebisr Macqreoor Ass. Ltd. Vs N.M.B. Ltd (1996) 2 NWLR (Pt. 431) 378: (1996) 2 SCNJ 72 @ 81.

— K.M.O. Kekere-Ekun JSC. B.O. Lewis v. United Bank for Africa Plc. (SC.143/2006, 14 January 2016)

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BECAUSE A JUDGEMENT IS A NULLITY DOES NOT MEAN IT IS NON-EXISTENT

I must observe that in trying to answer these important questions, learned counsel for the respondents tried to take umbrage under the statement of Lord Denning in Macfoy v. United African Co. Ltd. (1961) 3 W.L.R. 1405 at p.1409, P.C. where he said: Any purported exercise of any function being without any legal or Constitutional authority was null and void and of no effect. . .” If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding, which is founded on it, is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. With respects to the learned counsel for the respondents, it appears to me that the very eminent Lord Justice’s aim in this much misquoted and misapplied dictum was again talking of the effect in law of a judgment being declared void. It is “automatically null and void without more ado” and every proceeding which is founded on it is also bad and incurably bad.” His Lordship did not say that it ceases to exist as a fact. I agree with Chief Williams that there is a world of difference between saying that a judgment has no legal effect or consequences and saying that it is non-existent; between giving a judgment which is a nullity because, say, it was given without jurisdiction and saying that no judgment was given at all. The learned Justice of Appeal was, therefore, in error when he held that because the previous judgment of the Court of Appeal had been nullified by this court-for having been delivered more than three months of the conclusion of the final addresses, it follows that the judgment was non-existent. In my view, although, by its being declared a nullity, the judgment had no more any legal effect, it continued to exist de facto.

— P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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RATIONALE BEHIND JUDGEMENTS BEING DELIVERED WITHIN THE CONSTITUTIONAL THREE MONTHS

There is no doubt, that if a Court of Appeal fails to deliver its judgment within three months, such failure contravenes this provision. Therefore, any judgment becomes null and void if delivered outside the time limit. The question is, who should be blamed since the appellants or the respondents as the case may be, are not responsible for the lateness of the Court of Appeal in delivering its judgment. Where, therefore, should the blame lie, in what appears to be the wrong doing of a panel of judges There is no provision in the law as to who will bear the responsibility for the cost of re-hearing. It therefore appears, that parties to a suit are being punished for the wrong doing which they are not responsible for. It is in this sense that counsel argued forcibly that the construction of the relevant section should not be mandatory but directory. If one accepts the argument that the provision of section 258(1) of the 1979 Constitution is directory, then the question is as to what happens to the judgment delivered in breach of it. Definitely, the judgment violates the provision of the Constitution, because it was delivered out of time. The judgment, therefore, is null and void. The next question is as to what happens to the parties and the judges Except that the judgment becomes null and void, the judges do not suffer any liability. It is quite clear that there is no provision for damnifying judges for such a breach. This section of the Constitution has been specially promulgated to prevent rather undue delayed judgment, which, being capable of being set aside, does not benefit either party to the case or on appeal. When any judgment is unnecessarily delayed, it is not possible for the court of trial to retain observations of the witnesses, and the freshness of the demeanour of a witness is lost. It is, therefore, to save such undue delay that this particular provision has been made. Often in the past, a judgment is set aside and the case is remitted for retrial or re-hearing, because the delay is so long that a trial judge would have lost advantage of observation of a witness and sometimes forgets the sequence. It is the duty of all judges to apply the laws strictly, but it will not be right of them to attempt to wriggle out of such application and defeat its object. It is, therefore, essential that all courts should see to the proper compliance with section 258 (1) of the Constitution of Nigeria 1979. Learned counsel for the appellant emphasised that directory construction should be preferred, because of the helplessness of parties. In a judgment given in violation of section 258(1), one party gains and the other loses. It is only fair that parties be restored to their original status when ordering re-hearing. The purpose of section 258(1) is to give some certainty as to the law determining rights of parties. It is, therefore, of the utmost importance to either the appellant or the respondent that a court, which determines an appeal, does so within the required period. That will lead to the enhancement of the court and the judiciary.

— Sowemimo, JSC. Odi v Osafile (1985) – SC.144/1983

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A CONCURRING OPINION HAS EQUAL WEIGHT AND FORCE AS A LEAD JUDGEMENT

It is settled law that a contributory or concurring judgment has equal weight as the lead judgment. It is part of the lead judgment and therefore has the same force and binding effect. The mere fact that a concurring or contributory judgment contains what is not in the lead judgment will not whittle down its binding effect. Thus in Olufeagba & Ors v. Abdur Raheem (2009) LPELR-2613(SC), my Lord Fabiyi, JSC said: “A concurring judgment, has equal weight with or as a lead judgment. A concurring judgment compliments, edifies and adds to the lead judgment, when the justice, add to it certain aspects which the writer of the lead judgment did not remember to deal with. In so far as a concurring judgment performs same or all the above functions, it has equal force with or as the lead judgment in so far as the principles of stare decisis are concerned.”

— H.S. Tsammani, JCA. APM v INEC & Ors. (2023) – CA/PEPC/04/2023

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