Receivership/Manager

At the time the order for retrial was made, Akwa Ibom State had been created from Cross River State, resulting in the matter being transferred to the Uyo Division of the Federal High Court. Following the failure of the respondent to put in an appearance or file Notice of Intention to Defend, judgment was again entered against the respondent under the Undefended List. Following the judgment, the respondent brought an application for the judgment to be set aside on the ground that certain conditions precedent to instituting the action had not been complied with, as the appellant had failed to comply with Section 493 of the Companies and Allied Matters Act 1990, that subjects all claims against a wound-up company to prior proof under the Bankruptcy Act Cap. 30 Laws of the Federation of Nigeria 1990; Section 32(3) (8)(b) and (c) of the Bankruptcy Act; the Nigerian Deposit Insurance Corporation Act, 1990 that gives the Nigerian Deposit Insurance Corporation the power to prove claims made against a failed bank and Rules 70-101 of the Companies Winding Up Rules 1983, that stipulate the procedure for proving debts against a wound-up company. After hearing the application, the learned trial Judge set aside the judgment and transferred the matter to the general cause list. Dissatisfied with the decision the appellant appealed to the Court of Appeal, Calabar Division which dismissed the appeal. The appellant decided to further appeal to the Supreme Court. The Notice of Appeal filed on 25/9/2006 contained three grounds from which the following two issues were formulated:-
1. Whether the Court of Appeal was right in affirming the decision of the trial Court in setting aside its judgment entered on the merits on the Undefended List (Grounds 1 and 2)
2. Whether the Court of appeal was competent to suo motu raise and decide that service on the respondent’s counsel at the High Court was improper service when the trial Court had held the service was proper and the point was not appealed on or canvassed on appeal by the parties (Ground 3).
The respondent submitted a sole issue for determination which is:-
Whether the Court of appeal was right when it affirmed the decision of the trial Court setting aside its judgment for want of jurisdiction to entertain the appellant’s claim under the Undefended list Procedure.
The crux of this appeal is centred on issue 1. In the lower Court’s judgment at page 449 Ngwuta JCA (as he then was) held that the non-compliance with the provisions of the legislations cited prior to the institution of the suit rendered the suit incompetent and robbed the trial Court of jurisdiction to hear it.
Learned Senior Counsel for the appellant conceded Paragraph 4.05 that where any kind of decision of any Court was reached without jurisdiction or is a nullity, that Court has inherent jurisdiction to set it aside. He however submitted that no such case was made out to warrant the Court of Appeal affirming the setting aside of the judgment of the trial Court as it was given on the merit since it was a judgment on the Undefended List. He argued that the non-application of purportedly applicable laws by a Court in the determination of a case is not a matter of jurisdiction. He also contended that the non advertence to purportedly applicable laws does not confer jurisdiction on a trial Court to sit on appeal over its judgment entered on the merits and that what the two lower Courts did in this case is an affront to the system of appellate justice in Nigeria. It is the learned Senior counsel’s further contention that the fact that a Court may have made a mistake of law in its decision does not give it the power to sit on appeal over its decision so as to correct the error. He relied on the pronouncements of Obaseki JSC and Othman Mohammed SC in Umunna v. Okwuraiwe (1978) 6-7 SC 1 at 11 and Obioha v. Ibero (1994) 1 NWLR (Pt. 322) 503 at 532 respectively. He referred to the cases of Mark v. Eke (2004) 5 NWLR (Pt. 865) 54 at 77 and Ben Thomas Hotel v. Sebi Furniture Co. Ltd (1989) NWLR (Pt. 123) 523 and submitted that what would justify a trial Court setting aside its own judgment is if there is absence of service or if the Rules of that Court provide for it.
In its consideration of the argument by counsel for the appellant and respondent on the validity or nullity of the judgment delivered by the trial Court on 29/7/2004, the lower Court stated at pages 447-448 of the records:-
“Appellant’s contention is hinged on the fact that a Judgment on the undefended list is a judgment on the merit and that the judgment on merit cannot be said to be null and void since Court of Appeal had determined that the suit is competent.

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