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ROBERT C. OKAFOR & ORS. V. AG & COMMISSIONER FOR JUSTICE & ORS.
citation: LGC-1864 (19/7/1991)
In The Supreme Court of Nigeria
On Friday, the 19th day of July, 1991
SC.264/1988Before Their Lordships
ADOLPHUS GODWIN KARIBI-WHYTEJustice of The Supreme Court of Nigeria
SAIDU KAWUJustice of The Supreme Court of Nigeria
SALIHU MODIBBO ALFA BELGOREJustice of The Supreme Court of Nigeria
UCHE OMOJustice of The Supreme Court of Nigeria
PAUL KEMDILIM NWOKEDIJustice of The Supreme Court of Nigeria
Between
I cannot accede to the suggestion that the above dictum can only but be referable to the possibility of the admitted mistake resulting in lack of fair hearing. This is because as was said in Muhammed v. Kano N.A. (1968) 1 All NLR, 424, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case. What then is the nature of the mistake? Is it that of giving a judgment earlier than the date indicated for hearing and without oral hearing. Again what is the effect where the parties were not heard when they ought to be heard? Again since the judgment was adjourned to 14/6/88 was there any right to judgment delivered before that date? Finally was the judgment delivered prematurely on 11th April, 1988 instead of the 14th June, 1988 regular.
……………………………E……………………………
There is no doubt that the judgment delivered on 11/4/88 was not regular, having been given prematurely. The Plaintiff was therefore not entitled to such a Judgment.
The questions posed above appear to me to suggest that the mistake on the part of the Court has resulted in a procedural irregularity which involved the infringement of the constitutional right to fair hearing. It is well settled that any breach of the provisions of the fundamental right provision renders the act subsequent to such breach a nullity. – See Adigun v. A-G of Oyo State (supra). Since the denial of the right to address has deprived the trial Judge the benefit of such address, it cannot be asserted with certainty that a miscarriage of Justice has not occasioned. – See Obodo v. Olomu (1987) 3 NWLR. (Pt.59) 111, Adigun v. A-G of Oyo State (1987) 1 NWLR (Pt.53) 678. The distinction though very fine has always been made between procedural irregularity and nullity. A Judgment may be set aside for irregularity where the irregularity consists of non-compliance with the rules. Thus where there is such a non- compliance which affects the fundamental principle irregularity, and vitiating all acts resulting in a nullity. In Hamp-Adams v. Hall (1911) 2 KB.942, it was stated that “Where Judgment against a party is signed irregularly, it is worse than a mere non-compliance with the rules, and he is entitled ex debito justitiae to have it set aside…”
A nullity is in law a void act, an act which has no legal consequence. The act is not only bad, and as was stated by Denning L.J. in U.A.C. Ltd. v. Macfoy (1961) 3 ALL E.R. 1169, is incurably bad. In Fry v. Moore (1889) 23 QBD 395, Lindley MR distinguished between an irregularity and a nullity, at p. 398 when he said: “But then arises the question, whether the order for substituted service was a nullity, rendering all that was done afterwards void, or whether it was only an irregularity. If it was the latter, it could be waived by the defendant. I shall not attempt to draw the exact line between an irregularity and a nullity. It might be difficult to do so…” A clearer distinction has been made in Isaacs v. Robertson (1984) 3 WLR.709 where Diplock L.J. said “The contrasting legal principles or concepts of voidness and voidability form part of English Law of Contracts. They are inapplicable to orders made by a Court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can  be set aside by the Court that made it upon an application to that court, if it is regular it can only be set aside by an appellate Court upon appeal if there is one to which appeal lies.” Learned counsel to the Appellants suggests that the procedure leading to the judgment was regular. I do not think so. Nothing can be more irregular. It was Appellant’s argument that the Court of Appeal after the delivery of the Judgment impugned was functus officio and cannot sit on a Court of Appeal over that Judgment. The crux of the matter is whether in law as distinct from fact, the Court had given a Judgment in the matter. The question lies in the answer whether the procedure followed was regular or irregular. Our Courts have adopted the principle formulated by Lord Atkin in Evans v. Bartlam (1937) AC.473. 480 where the Lord Justice said, “The principle obviously is that unless and until the Court has pronounced a Judgment upon its merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.” It is well settled that where the Court is competent as to its composition and qualification of its members, it has the power to determine its jurisdiction. – See Barclays Bank v. Central Bank of Nigeria (1976) 6 SC.175. That is, it has the jurisdiction to pronounce on the validity vel non of its own act. The answer to the contention of learned counsel to the Appellant is that the Court of Appeal was not re-opening its decision. The Court was only being called upon, to determine whether on the facts before it gave a decision. The Court of Appeal has been told that because of the defect in the exercise of its jurisdiction to give judgment in CA/E/172/87 the decision was a nullity. It is therefore appropriate and in the inherent Jurisdiction of the court to set the decision aside in the interest of justice. This jurisdiction has always been exercised in many cases where the court has given judgment by default. The principle has been clearly stated in Craig v. Kansen (1943) 1 All ER 111, where Greene M. R. said; “An order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. As far as the procedure for having it set aside is concerned, the court in its inherent jurisdiction can set aside its concerned, the court in its inherent Jurisdiction can set aside its own order and an appeal from the order is not necessary” (Italic mine). Thus in all situation, where the decision is regarded as a nullity, as in the instant case, the party affected is entitled ex debito justitiae to have it set aside; and the court has an inherent jurisdiction to set aside. – See Obimonure v. Erinosho (1966) 1 All NLR. 250. Ogbu v. Urum (1984) 4 SC.1 cited in Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188; (1990) 1 SCNJ. at p. 167. In Aladegbami v. Fasanmade (1988) 3 NWLR. (pt. 81) 129, Oputa J.S.C. expressed the principle when he said; “The point that it needs an order of Court to set aside, even a judgment that is a nullity was brought out in Craig v. Kensen supra …. Whether the court set aside its own order or an appellate court does it, the point being made is that there must be an application to a court to have the order set aside otherwise the order subsists- Grafton Isaacs v. Emery Robertson (1984) 3 WLR.705. Therefore the ruling of Heddges J even if it was a nullity (which in fact it was not) had to be set aside by a Court and since Hedges J was no longer around by an appellate court”. The judgment of the court having been discovered to be a nullity, the court on the application of the person affected, has jurisdiction to set it aside. – See Anlaby v. Praetorius (1988) 20 WBD.764. The jurisdiction can also be exercised by the Court suo motu – See Lazard Brothers & Co. v. Banque Industrialle de Moscou (1932) 1 KB. 617, Craig. v. Kansen (supra). Learned counsel to the Appellant relies on his challenge of the jurisdiction of the Court of Appeal to set aside its judgment delivered in error, on the ground that the Court of Appeal having exercised its jurisdiction to give the Judgment was functus Officio. The only course open to the 4th & 5th Defendants/Respondents, it was suggested was an appeal. I have already pointed out in this judgment that the defect in the procedure relied upon by the Court of Appeal in setting aside the Judgment showed that the irregularity complained of, affected the fundamental concept of our administration of Justice and was so substantial as to constitute the proceedings a nullity. The Court was therefore right to set aside its decision – See Williams v. Hope Rising (1982) 1-2 SC. 145. Ugwu & ors v. Aba & ors. (1961) All NLR. 438; Doherty v. Doherty (1964) NMLR.144, B.G.C.C. v. Spetsai (1962) 1 All NLR. 496 (1962) 2 SCNLR 310, Khawam v. Elias (1960) 5 FSC.224 (1960) SCNLR 516.
Appellant
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