OKAFOR V. ATTORNEY-GENERAL

• Pages: 406-421

406

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NIGERIAN SUPREME COURT CASES [1991] 2 N.S.C.C.

For the above reasons and also for the reasons advanced by my Learned

brother, Kawu, J.S.C., I allow this appeal. I set aside the judgment of the Court of

Appeal, Benin Division, dated 9th December, 1988. I am also in agreement that

each party should bear his costs.

Appeal allowed.

OKAFOR V. ATTORNEY-GENERAL

1.

ROBERT C. OKAFOR

2.

OKAFOR EZEKVVEM

3.

OZI ODILI OBIORAH

4.

EZEANA NWOSU ILOANYA

5.

CHIEF C. CHINWUKO

6.

NNEBE AGUMADU

(suing for themselves and on

behalf of the Ozos, Ndichies

and Ezeanas of Agulu and

Amikwo Communities Awka.

V.

1. THE ATTORNEY-GENERAL AND

)

)

)

)

)

)

)

)

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)

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APPELLANTS

1

2

COMMISSIONER FOR JUSTICE.)

2.

ANAMBRA STATE

COMMISSIONER FOR LOCAL

GOVERNMENT RURAL

DEVELOPMENT AND

CHIEFTAINCY MATTERS.

3.

SOLE ADMINISTRATOR AWKA

LOCAL GOVERNMENT AREA

(R.N. OKENWA).

4.

OZO DR. S.E. ONEJEME

5.

OZO A.C. NDIGWE

RESPONDENTS

APPEAL NO. S.C. 264/1988

SUPREME COURT OF NIGERIA

KARIBI-WHYTE,



J.S.C.



z

KAWU,



J.S.C.

BELGORE,



J.S.C.

OMO,



J.S.C.

NWOKEDI,



J.S.C.

19th July, 1991.

Practice and Procedure - Court - When may it set aside its own judgment - Judgment -

Unilaterally given by court earlier than the date fixed - Legal elrect thereof - Abuse of

Court process - When does it arise.

Words and Phrases -"Irregularity" and "Nullity" - Distinction. between.

OKAFOR V. ATTORNEY-GENERAL

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407

5

ISSUES:

1.

Need parties sued jointly and severally in a suit pursue a common remedy?

FACTS:

The appellants as plaintiffs brought an action in the High Court seeking certain

declarations and injunctive reliefs aciainst the defendants. The plaintiffs, immedi-

ately upon serving of the writ of summons, applied for and were granted interim

injunction against the defendants.

10

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The defendants on their part did not file any statement of defence but instead

filed separate motions seeking to dismiss the action. While the 1st - 3rd defendants

prayed that the plaintiffs action be dismiSsed for lack of locus standi to institute the

action, the 4th and 5th defendants relied on the ground that the Court had no

jurisdiction to entertain the action because the statement of claim, inter alia, "is

15 fishing, and is an abuse of the process of the Court



''

On 15/12/86 the learned trial judge granted the defendants application and

dismissed the plaintiffs action. Plaintiffs then appealed to the Court of Appeal.

Besides the substantive appeal against the decision of the trial court dismissing

the plaintiffs claim, the Court of Appeal also had before it an appeal against an

20 interlocutory decision of the trial court in the suit. The main appeal was fixed for

hearing on 14/6/88, and Counsel indicated that they did not intend to add to their

briefs of argument which they would adopt at the hearing.

On 11/4/88 the Court of Appeal gave judgment on the main appeal, which was

fixed for hearing on 14/6/88, while delivering judgment on another issue concern-

25

ing the minor appeal between the parties. In response, the 4th and 5th defendants

on 1

8

/

4

/88, filed a motion seeking to set aside the judgment and order for

re-hearing delivered by the Court of Appeal on 11/4/88, on the ground that the

judgment was delivered without hearing them and before the date indicated for

hearing. The 1st - 3rd defendants, on their part, filed a notice of appeal to the

30 Supreme Court which notice was however, withdrawn before ruling on the motion

by the 4th and 5th defendants and before the Record of Appeal had been

transmitted to the Supreme Court.

The plaintiffs on the other hand, filed a motion praying the Court of Appeal to

dismiss the motion of the 4th and 5th defendants dated 18/4/88 to set aside the

35 judgment dated 11/4/88 on the ground that it was an abuse of the process of the

Court, inter alia. And on 18/11/88 the Court of Appeal, in its ruling, set aside its

judgment delivered on the 11/4/88 and dismissed the plaintiffs motion.

Being dissatisfied, the plaintiffs/appellants appealed to the Supreme Court

against the ruling of the Court of Appeal. They contended, inter alia, that the Court

40 of Appeal erred in law by holding that the application before it and the complaint

thereof contained issues which fundamentally affected its jurisdiction to deliver the

judgment and not a complaint which an affected party should take up on appeal

for lack of "fair hearing", and that the Court also erred in law by holding that it had

jurisdiction to set aside its own judgment.

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HELD :

1 The fact that parties to a suit are sued jointly and severally cannot derogate

from any of the parties, their right to pursue whatever remedy the law has given

to them.

(See p.411 lines 29 - 31).

50

Per

KARIBI WHYTE, J.S.C.

2.

A judgment delivered by a court unilaterally on a date earlier than the date fixed

for hearing and without hearing the parties before it is not regular, having been