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consideration into his judgment, the learned trial Judge by what I term judicial legislation threw overboard and or repealed Exhibit –D” which is the applicable customary law to the chieftaincy.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
SHARE ON
A judgment of court which finally settles the rights of the parties in the subject matter of the claim in the sense that it was not given in default of a Statement of Defence is a final judgment.
– Karibi-Whyte, JSC. Afegbai v. A.G Edo State (2001)
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)
In Ziakade Akpobolokemi v Capt. Emmanuel Iheanacho (2016) LPELR -40563(CA) thus: “A concurring judgment complements, edifies and adds to the leading judgment. It could at times be an improvement of the leading judgment when the justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. In so far as a concurring judgment performs some or all the above functions, it has equal force with or as the leading judgment in so far as the principles of stare decisis are concerned.”
Also, in Dalyop vs. Oradiegwu (2000) 8 NWLR Part 669 page 421, this Court, per Akpabio, J.C.A, said: “Section 258(1) of the 1979 Nigerian Constitution (as amended) which appellant said gave him “a constitutional right to address the court before judgment is delivered” did not give him any such right. Rather it restricted the period within which every court must deliver its judgment to a period of “not later than 3 months after the conclusion of evidence and final addresses.”
Circumstances in which a court may invoke its inherent power to set aside its judgment or order are:- (1) To correct any clerical error or mistakes arising from accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention under the Rules of Court Order 5 rule 3 Court of Appeal Rules, 1981. (2) Until a court pronounces a judgment on merit or by consent of the parties a court retains the power to set aside its default judgment obtained in the absence of one of the parties or default of pleadings – The power to do so is however discretionary and has to be exercised judiciously. Mohammed v. Husseini (1998) 14 NWLR (Pt.584) 130; paragraphs D-E. Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; (3) Where a judgment has been obtained as a result of fraud practiced by one of the parties Ojiaka v. Ogueze(1962) 1 SCNLR 112, (1962) 1 All NLR 58; Ekerete v. Eke (1925) 6 NLR 118; Craig v. Kanseen (1943) K.B. 256; Agunbiade v. Okunoga (1961) 1 All NLR 110. (4) Where a judgment is a nullity, due to a fundamental defect which goes to the issue of jurisdiction and competence of the court. J. A. Folorunso v. Shaloub (1994) 3 NWLR (Pt.333) 413 at 422, paragraphs G-H; Skenconsult (Nig.) Ltd. Ukey (1981) 1 SC 6.
— O.O. Adekeye, JCA. Omotunde v. Omotunde (2000) – CA/I/M.57/2000
I belief it is useful to begin my consideration of the main issue for determination in this appeal by advising myself that a judgment in a civil case is made up more or less of five distinct parts. These are the introduction of the issue in controversy between the parties, the cases of either side to the litigation as revealed on the pleadings, the evidence called by either side in support of its case, the resolution of the issues of fact and of law put forward by each party, and the court’s conclusions based on the resolution of the issues and the claims before the Court.
— P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)
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