When a Court would set Aside it’s own Judgment By O.G. Ogbom, Esq.

It is the law that if an order of court is a nullity it can be set aside without much ado. Dealing with this in Craig v. Kanseen (1943) K.B.256, Lord Greene, after referring to a number of decided cases, stated at page 262:

Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order, and that it is not necessary to appeal from it. I say nothing on the question whether or not an appeal from the order assuming it to be made in proper time, would be competent.

Per Nnaemeka-Agu, J.S.C. (P.48, Paras.A-D) – in the celebrated case of MARK v. EKE (2004) LPELR-1841(SC), the Supreme Court dispassionately appraised the conditions when a court would set aside its own judgment and held as follows per Musdapher, JSC at page 24, para D-F:

“The law is settled that any court of record including the Supreme Court, see Olabanji v. Odofin (1996) 2 SCNJ 242 at 247; (1996) 3 NWLR (Pt. 4B5) 126, has the inherent jurisdiction to set aside its own judgement given in any proceeding in which there must have been a fundamental defect such as one which goes to the issue of jurisdiction and competence of the Court. See Skenconsult A.C.S. Pic. v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt. 405) 206; (1995) 7 SCNJ 158 at 168. Such a judgment is a nullity. A person affected by it, is therefore entitled ex debito Justitiae to have it set aside. The court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal. See Adeigbe v. Kusimo (1965) NMLR 284; Ezeokafor v. Ezeko (1999) 6 SCNJ 209 at 225; (1999) 9 NWLR (Pt. 619) 513. This is common sense that if a court makes an order which it has no jurisdiction or competence to make, it has the jurisdiction to rescind the order so as to restore the status quo. See Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt. 167) 270. A judgement or order which is a nullity owing to failure to comply ‘with an essential provision such as service of process can be set aside by the Court which gave it or made the order …In such a case, where the defendant proves non-service on him, the whole proceedings become a nullity and the trial court has the jurisdiction to set it aside…”.

Again, in WILLIAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) 1 ALL NLR 1, the Supreme Court laid down the conditions for setting aside a default judgement as follows:

a) Whether the applicant has good reasons for being absent at the hearing.

b) Whether he has shown that there was good reason for his delay in bringing the application i.e. whether there was undue delay in bringing the application so as to prejudice the party in whose favour the judgment subsists,

c) Whether the respondent  will not be prejudiced or embarrassed if the order for relief is made.

d) Whether the applicant’s case was manifestly unsupportable and,

e) Whether the applicant’s conduct throughout the proceedings is deserving of sympathetic consideration.

It is a well settled principle, that the Rules of Court and inherent jurisdiction of Court, allow for an applicant to bring an application on grounds of non-service, fraud and lack of jurisdiction to set aside judgement by the same court that gave the judgement.

On the ground of non-service required by the Rules or on the reason for being absent at the hearing required by WILLIAMS v. HOPE RISING VOLUNTARY FUNDS SOCIETY (Supra), the Applicant(s) will have to depose to the facts that it was as a result of non-service of the originating and other processes that he was absent in court, that the originating process was never in fact served on him, as a result, he was oblivious of the pendency of the suit against him and could not defend same accordingly.

The law is trite that the necessity for the requirement of service of originating processes, whether personal or by substituted means is to bring to the notice of the Defendant in an action, knowledge of the pendency of a suit against him to enable such defendant prepare himself and defend the action appropriately.

In FIRST RANK OF NIGERIA PLC. v. T.S.A. INDUSTRIES LIMITED. (2010) LPELR-1283(SC), Adekeye, JSC, while stating the importance of service of Court processes, held as follows:

“The essence of service of process on parties in a case is to enable them to appear to prosecute and defend the case and also to ensure the appearance of the parties and those of their respective counsel in court. These are fundamental conditions to be seen to have been fulfilled before a court can have competence and exercise jurisdiction over a case. This also accords with the principle of natural justice which postulates that both sides to a case must be heard. Consequently, failure to serve a process where service of process is required to be served renders any order made against the party not served with process null and void… Madukolu v. Nkemdilim (1962) 2 SCNLRpg.341. U.B.A. Pic v. Ajileye (1999) 13 NWLR pg.633 pg.116. Oke v. Aiyedun (1986) 2 NWLR pt.23pg.548.” Per Adekeye, J.S.C. (Pp.71-72,paras. G-D).

Where service is not effected, or a wrong party is served in place of another, the intendment of the law becomes defeated and such failure of a condition precedent goes to the root of the matter In EKE v. OGRONDA (2007) ALL FWLR (PT. 351) 1456 at 1482, para. H (SC), Niki Tobi, JSC held that:

It is a correct proposition of law that where service of process is required, failure to serve such process is a fundamental vice and the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity”

There is no doubt that a court has authority to declare its judgment or the judgment of another court of co-ordinate jurisdiction null and void if there is a fundamental defect in the proceedings which goes to the issue of jurisdiction and competence of the court.
When a thing is a nullity, it is as if the thing never existed. When a marriage is null and void it is as if the status of matrimony had never been conferred: see Vol. 12 Hals. Laws of England (3rd Edn.) p.226. Similarly, when a judgment or order is a nullity, it is as if it was never given or made. It can be set aside without much ado. But, ex abundantia cautela it is advisable to go to court to set it aside, if for nothing else to have the fact of its being set aside put on the record.

Again, fraud is another ground upon which a court will set aside its judgement or that given by a court of coordinate jurisdiction. But it must be stated that the procedure for bringing an action to set aside a judgment obtained by fraud is exceptional in nature and therefore subject to some rules designed to ensure that the procedure is not abused. Generally speaking, when a trial court has given judgment in a case on the merit, that court is funtus officio in relation to the judgment once it is pronounced. It cannot ordinarily re-open the case for a fresh hearing. A party dissatisfied with the judgment can only bring proceedings on appeal against it. However at common law and equity, fraud is viewed seriously and no effort is spared to ensure that a transaction or proceedings tainted by fraud is dismantled. This explains the emergence of the procedure whereby, person against whom judgment has been procured by fraud could come by an action or motion to set aside on the ground of fraud, it is not sufficient to merely allege fraud without giving the particulars thereon and the fraud alleged must relate to matters which prima facie will be a reason for setting the judgment aside if they were established by proof and not to matters which are merely collateral. The court require a strong case to be established before it will set aside a judgment on the grounds of fraud. As a rule, a judgment can only be set aside, if at all, against those who procured it by fraud. See Tiv v. Wombo (1996) 9 NWLR (Pt. 471) 16.” Per Ba’aba JCA.

In BARRISTER ORIKER JEV & ORS. V. IYORTOM & ORS. (2015) NWLR (PT. 1483) 484, the Supreme Court held as follows -” The Supreme Court possesses inherent power to set aside its judgment in appropriate or deserving cases. Such cases are as follows;
(a) When the Judgment is obtained by fraud or deceit either in the court or of one or more of the parties such a Judgment can be impeached or set aside by means of an action which may be brought without leave;
(b) When the Judgment is a nullity such as when the Court itself was not competent and a person affected by an order of Court which can properly be described as a nullity is entitled ex debito justitiatiae to have it set aside;
(c) When it is obvious that the Court was misled into giving a Judgment under a mistaken belief that the Parties consented to it;
(d) Where the Judgment was given without jurisdiction; and
(e) Where the procedure adopted is such as to deprive the decision or Judgment of the character of legitimate adjudication.

Also, in FINNI V. IMADE (1992) LPELR-1277(SC) the Supreme Court held thus;

It is accepted that in our adversary system of the administration of justice, where the judge is at all times expected to play the role of an unbiased umpire, he cannot raise any issues suo motu, and proceed to decide the matter on such issues without hearing the parties.”

But in KALU MARK & ANOR. V. GABRIEL EKE (2004) LPELR-1841 (SC), page 24, paras. C-D, the Supreme Court however, said, if the Judgment is a nullity, the Court which made it can set it aside on a motion suo motu or on an application by any party affected by it. The law is settled that any court of record including the Supreme Court has the inherent jurisdiction to set aside its own judgment given in any proceeding in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the Court. Such a judgment is a nullity. A person affected by it is therefore entitled ex debito justitiae to have it set aside. The Court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal.

In conclusion, it is a settled law as enunciated in several decided cases and also the case of Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt. 167) 270, that ajudgement or order which is a nullity owing to failure to comply ‘with an essential provision such as service of process, fraud or lack of jurisdiction, can be set aside by the Court which gave it or made the order …In such a case, where the defendant proves non-service, fraud or lack of jurisdiction him, the whole proceedings become a nullity and the trial court has the jurisdiction to set it aside. See MADUKOLU v. NKEMDILIM (1962) 1. ALL NLR 187; MADUKA v. UBAH (2014) 11 CLRN 157.

Ogbom Goodluck O, Esq. LL.B (Hons), LL.M., is a Port Harcourt based legal Practitioner.
ogbomgoodluck@gmail.com

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