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OUT OF NOTHING, NOTHING CAN ARISE; NOTHING CAN COME FORTH OF A JUDGEMENT THAT IS A NULLITY

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The aforesaid attempt by respondents’ counsel to influence this court, consisting of a different panel of Justices, by the previous but nullified conclusions-even though described as opinions-of its predecessors in respect of the same appeal is, in my view, a novel and an improper one. As rightly submitted by learned Counsel for the appellants a judgment set aside as a nullity ceases to have any effect whatsoever, for it is non-existent and as if it had never been given. I therefore agree with the conclusion of appellants’ counsel that such judgment “cannot constitute an opinion of the court that gave it, for out of nothing, nothing can arise.” Reference was specially made to the cases of Akpene v. Barclays Bank (1977)1 S.C. 47 at 59 where the Supreme Court adopted the view of Lord Denning in Macfoy v. United African Company Ltd. (1961) 3 W.L.R. (P.C.) 1405 at 1409, to the effect that: “You cannot put something on nothing and expect it to stay there. It will collapse.”

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

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NULL JUDGEMENTS BECOME MERE DOCUMENTS; COURT CANNOT TAKE JUDICIAL NOTICE OF ALL DOCUMENTS IN HIS REGISTRY

As stated earlier, such judgments exist not as judgments but as documents. They become documents as any other document in the Registry of the court. It would be most tedious to argue that the court could take judicial notice of every document in its registry. Section 73 of the Evidence Act deals with matters, which the court can take judicial notice of. As stated earlier, a judgment declared null exists in fact, it exists as a document in the Registry. In my view, if any party to proceedings desires to make use of such document, it has to be produced before the court. Section 73(3) of the Evidence Act provides that:-“If the Court is called upon by any person to take judicial notice of any facts, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.”

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

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EVERY JUDGEMENT TAKES EFFECT ON PRONOUNCEMENT

In the case of INTERCONTRACTORS NIGERIA LTD v. U.A.C. OF NIGERIA LTD (supra) or (1988) (Pt. 1) Vol. 9 NSCC 737 at 752. This court per KARIBI WHYTE JSC stated:- “It is well settled that every judgment takes effect on pronouncement – see BANK OF WEST AFRICA LTD v. N.I.P.C LTD [1962] LLR 31; OLAYINKA v. ELUSANMI [1971] 1 NMLR 277. A judgment debtor seeking to stay the execution must show that he is challenging the judgment, or is asking for time to comply with the terms of the judgment.”

— D. Musdapher JSC. M.O. Olatunji v. Owena Bank (PLC) & Anor. (SC.349/2002, 25 April 2008)

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MEANING OF OPINION IN A CASE/JUDGEMENT

I must not, I believe, confuse it with the meaning attached to the word in England where it refers to the speech or a whole judgment of a Law Lord delivered in the Rouse of Lords, or in the United States where it refers to the entire judgment of a superior court. It is in the context of the use of the word with reference to the United States and House of Lords’ decision that Black’s Law Dictionary (5th Edn.) at p.985 defined “opinion” as- The statement by a Judge or Court of the decision reached in regard to a cause tried or argued before them expounding the law as applied to the case and detailing the reasons upon which the judgment is based. This equates an “opinion” to the entire decision, which would include other parts of a judgment. But clearly the appellants are not saying that the Court of Appeal on the second hearing should have simply rubber-stamped and handed down again the previous decision of that court differently constituted. A more relevant definition of the word “opinion” in the sense it is used in this appeal is to be found in Words and Phrases Permanent Edition Vol. 29A at pp. 495-496 where “opinion” was defined thus: “An ‘opinion’ of the court is a statement by the court of its reasons for its findings, conclusions, or judgment. I adopt this, and only add that it also includes not only the reasons but also such findings or conclusions in such a judgment. So, an “opinion” is the reasoning and conclusion of a Judge on the issue or issues in contention before him. It is in this context that I shall consider the real points raised by this appeal.

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

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JUDGEMENT IN REM – IT DETERMINE THE STATUS OF A THING OR PERSON

Now, in Law, a judgment in personam is a judgment against persons who are parties or privies to the particular suit or proceeding alone. It is referred to as judgment inter parties. It is a judgment binding on the parties to the action alone. A judgment in rem on the other hand, is a judgment that determines the status of a person or thing as distinct from referred to as a the particular interest of a party to the litigation. It judgment contra-mundum, binding on the whole World. It is therefore binding, not only on the parties to the dispute but even on non-parties. Therefore, once the status of a person or thing has been pronounced upon by a Court of competent jurisdiction, no person is permitted to assert the contrary of what the Court has determined. See Black’s Law Dictionary (11th Edition) at page 1008; Gbemisola v. Bolarinwa (2014) 9 NWLR (pt. 1411) 1 at 19; Yanaty Petrochemical Ltd v. EFCC (2017) LPELR -43473 (SC) and Ladejobi & Ors v. Oguntayo & Ors (2015) LPELR-4170 (CA). A judgment in rem therefore, is an adjudication which pronounced upon the status of a particular subject matter, by a Court of competent jurisdiction.

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

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JUDGEMENT IN REM

In Oni & Anor V Oyebanji & Ors( SC/CV/398/2023 on 6-4-2023) this court Per Agim JSC restated the law on this concept thusly “As this Court held in Ogboru & Anor v. Uduaghan & Ors (2011) LPELR-8236 (SC) “A judgement in rem may be defined as the judgement of a court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title. (a) Examples are judgment of a Court over a will creating the status of administration. (b) Judgment in a divorce by a Court of competent jurisdiction dissolving a marriage declaring the nullity or affirming its existence. (c) Judgment in an election petition. The feature of a judgment in rem is that it binds all persons – 36 whether a party to the proceedings or not. It stops anyone from raising the issue of the status of persons or persons or things, or the rights or title to properly litigated before a competent Court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the Court has by such judgement declared or made it to be.” Okpalugo vs. Adeshoye (t996) 10 NELR pt. 476, pg. 77, Fan trades Ltd. vs Uni Association Co. Ltd. (2002) 8 NWLR Pt. 770, pg. 699., Ogbahon vs. Reg. Trustees CCCG (2002) 1 NWLR Pt. 749, pg. 675, Olaniyan vs Fatoki (2003) 13 NWLR pt. 837, Pg. 273.

— E.A. Agim, JSC. Oyetola v INEC & Ors. (2022) – SC/CV/508/2023

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TRIAL JUDGE IMPORTED EQUITABLE CONSIDERATION INTO HIS JUDGEMENT

By importing equitable consideration into his judgment, the learned trial Judge by what I term judicial legislation threw overboard and or repealed Exhibit –D” which is the applicable customary law to the chieftaincy. The court does not have that power. The office of the judge is jus dicere, not jus dare. See Okumagba v. Egbe (1965) All NLR 62 at 67.

— Ogwuegbu, JSC. Ogundare v Ogunlowo (1997) – SC.25/1994

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