3PLR – ALAMIEYESEIGHA  V. CHIEF SATURDAY TEIWA

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALAMIEYESEIGHA

V.

CHIEF SATURDAY TEIWA

 

IN THE COURT OF APPEAL

ABUJA JUDICIAL DIVISION

CA/A/51/M/2000

12TH JULY, 2001

3PLR/2001/44  (CA)

 

OTHER CITATIONS

7 NWLR (Pt. 767) 701

 

 

BEFORE THEIR LORDSHIPS

MOHAMMAD SAIFULAHI MUNTAKA – COOMASSIE

DALHATU ADAMU

ALBERT GBADEBO ODUYEMI

 

BETWEEN

CHIEF D. S. P. ALAMIEYESEIGHA

 

AND

1.CHIEF SATURDAY TEIWA

(Traditional Law Officer of Gbaraun Kingdom)

2.CHIEF LEVI EDIDI

(Traditional Custodian Gbaraun Culture)

3.CHIEF (ENGR.) DOKUBO OKIAKPE

(Deputy Chief of Gbaraun Main Town)

4.THE CHIEF OF AIR STAFF

 

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

 

MAIN ISSUES

CONSTITUTIONAL LAW – Waiver of Immunity under section 308 of the 1999 Constitution – scope of – effect of breach.

ACTION – Commencement of action – Locus standi therefor – Source Of.

ADMINISTRATIVE LAW – Prerogative orders – Mandamus – When will lie – Whether will lie where same will violate the Constitution.

APPEAL – Issues for determination – Need to arise from grounds of appeal – Issue not arising from ground of appeal – How treated.

CONSTITUTIONAL LAW – Constitution of the Federal Republic of Nigeria, 1999 – Section 308 thereof conferring immunity on President, Vice President, State Governor and Deputy Governor – Purpose and intendment of – How construed.

 

MAIN JUDGMENT

DAHIRU MUSDAPHER, J.C.A. (Delivering the leading judgment)

The appellant herein His Excellency D.S.P. Alamieyeseigha is the elected Governor of Bayelsa State. By an ex-parte application, the 1st to 3rd respondents herein as applicants applied to the court below under the provisions of Order 47 Rule 3 of the Federal High Court (Civil Procedure) Rules against the 4th respondent, the Chief of Air Staff, Nigerian Air force, for an order:-

 

“granting the applicants leave to apply to this Honourable Court for an order of Mandamus to compel the respondent herein to act pursuant to section 83 of the Air Force Act CAP 15 LFN 1990 to dismiss from service or refer to a Court Martial for the trial of Squadron Leader D. S. P. Alemieyeseigha (NAF/677) for the offence of Cheating in an examination at the Command and Staff College Course 14 (CSC14) in 1991.”

 

Pursuant to the grant of the leave, an Originating motion on Notice was filed under Order 47 Rule 5 of the aforesaid rules on the 20th January 2000. The sole respondent the Chief of Air Staff was served with the motion and arguments were heard in the absence of the Chief of Air Staff on the 28th February, 2000. The Ruling was delivered on the 14th March, 2000 granting the applicants prayers. When the appellant became aware of the proceedings on the 21st March, 2000, he applied thereafter to the court below for the following orders:-

 

“(1)   Setting aside the order made by this Honourable Court on 18/1/2000 granting the applicants/respondent leave to apply for an order of Mandamus.

 

(2)     Setting aside the ruling delivered by this Honourable Court on 14/3/2000 including the Order of Mandamus commanding the Chief of Air staff to act pursuant to Section 83 of the Air Force Act Cap. 15 LFN 2990 to dismiss the applicant from the Air force and/or refer applicant for the trial by the Court Martial for alleged offence of Cheating at examination at the Command and Staff College Course No. 14 of 1991.”

 

The grounds of the application were stated as follows:-

 

“1.     The court lacked the jurisdiction to entertain the application of the applicants/respondents in that they have no locus to make the application.

 

2. Applicants/Respondents obtained the order granting leave and the ruling granting Mandamus by fraud in that they suppressed and concealed from the court the fact that the applicant is the Executive Governor of Bayelsa State; that the matter about the 14th Course incident at JAJI has been raised previously and resolved martially in applicant’s favour.

 

3. The application/proceedings:- was incompetent in that the action was not properly constituted as the applicant who is to be dismissed or court maritalled was not made party and was not given notice of the motion.

 

4. The proceedings violated applicants fundamental human right to fair hearing and the rule of natural justice and audi alterem partem.

 

5. Respondents lack Uberrima Fidei in that they concealed facts that:

 

1. Applicant is the Executive Governor of Bayelsa State.

 

1. The issues raised before the court have to the knowledge of the Respondents been raised and determined in the Governorship and National Assembly Election Tribunal and the Court of Appeal sitting as the Constitutional Court.

 

1. Made false statements in the affidavit.

 

6. The Court lacked jurisdiction in that the law on which respondent’s application was based had since ceased to be in existence.

 

7. The Entire proceedings including all the orders made are incompetent and void in that:-

 

1. Applicant having retired from the Air Force voluntarily over eight years ago is no longer subject to Air Force disciplinary measures.

 

1. As Executive Governor of Bayelsa State under the 1999 Constitution applicant enjoys immunity from any prosecution, criminal or civil.”

 

The motion on Notice was supported by an affidavit attached to which were some exhibits, the respondents, that is, 1st to the 3rd Respondents filed a counter affidavit in opposition to the motion. They also filed Notice of Preliminary objection on the grounds that:

 

1. The applicant has no locus standi to bring this application.

 

2. The Honourable Court was functus officio.

 

The Grounds for raising the Preliminary Objection are stated that:-

 

(I)      The applicant cannot be a party to the suit in view of S. 308 of 1999 Constitution.

 

(II)    The applicant was not a party to the suit and has not been let in to defend as an interested party.

 

(III)   The Honourable Court has no jurisdiction to set aside a judgment on the merits.

 

(IV)    Judgment was given on the merits in the suit.

 

It was prayed that the appellant’s Motion be struck out. The Notice of Preliminary Objection was taken by the Court on the 26/5/2000. After the address of Counsel, the learned trial Judge delivered his ruling on the 30/6/2000. The trial Court held in part of its judgment:-

 

“As far as this court is concerned, the ruling made on the 14/3/2000 was a considered ruling. It was not made ex-parte, therefore the court cannot set aside the ruling. The Court has become functus officio. The proper thing to do is to appeal to the Court of Appeal.”

 

The learned trial judge held in other part of his judgment:-

 

“The Governor cannot be sued or joined as a plaintiff or defendant as long as he remains Governor. It is like a two edged sword, he cannot sue and he cannot be joined in any proceedings. But he can be investigated. The applicant when he appeared (sic) before the Court Martial he can waive his immunity before them. But in this present case he is (not) a party or a proper defendant to the case and therefore he cannot challenge the order of this court.”

 

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

As stated in the case of Col. Rotimi v. Mcgregor (1974) SC (P. 133) the applicant being a Governor, cannot be sued as a defendant and he cannot even waive that immunity before any court.

 

The correct party to raise this type of objection or apply for the Order of the Court to be set aside, is the Chief of Air Staff, who unfortunately did not do so. The Preliminary Objection therefore succeeds and therefore the motion on Notice dated 27/3/2000 is struck out.”

 

It is against the ruling on the Preliminary Objection, that the appellant has appealed to this Court, the Notice of appeal contains two grounds of appeal and they read, thus:

 

(a)     The learned trial judge erred in law in holding that appellant who is affected by the order of Mandamus made on 14/3/2000 is not a person entitled to apply for the order to be set aside or vacated when the said order was made:-

 

(i)      Without jurisdiction.

 

(ii)     Without the appellant being put on Notice as required by Order 46 Rule 3 of the rules of the Court.

 

(iii)    Against the appellant who enjoyed status (of) immunity under S.308 of the Constitution of the Federal Republic of Nigeria.

 

(b)     The learned trial judge erred in law in holding that the court lacked jurisdiction to set aside the order of Mandamus made by it behind the appellant when the grounds for the application to set aside and vacate the said order include:

 

(i)      Absence of Jurisdiction ab initio on the part of the trial court.

 

(ii)     Obtaining the order by fraud, concealment of fact and non disclosure of material facts.

 

(iii)    Violation of Appellant’s fundamental rights of fair hearing in not giving notice of the application for Mandamus.

 

(iv)    Obtaining the Order on false statement/deceit.

 

(v)     Nullity of the entire proceedings in that the Order was made on non-existing law or total disregard of the law and Constitution.

 

(vi)    Respondents/Applicants lack of locus standi to institute the proceedings.

 

(c)     The learned trial judge erred in law in holding that appellant lacked locus standi to apply to set aside the Order of Mandamus affecting him when the said Orders:-

 

(i)      Violated his right under Order 47 of the Rules of Court and

 

(ii)     Violated his status immunity under S. 308 of the Constitution.”

 

In pursuance of the provisions of Order 6 of the Rules of this Court briefs of argument were filed and exchanged and at the hearing of the appeal learned counsel proffered oral submission in the elaboration of the arguments canvassed in their respective written briefs. In his brief for the appellant T. J. O. OKPOKO Esq. SAN has identified, formulated and submitted to this court two issues arising for the determination of the appeal. The issues are:-

 

“1.     Was the learned trial judge right in upholding the preliminary objection that appellant lacked locus standi to apply to set aside an order of Mandamus affecting him when the said order:

 

1. is null and void having been made without compliance with order 46 Rule 5 of the Rules?

 

1. Was made without jurisdiction having regard to S. 308 of the Constitution.

 

3. Was the learned trial judge right in holding that (he) it was functus officio in an application to set aside the order of Mandamus – when the grounds of application include:-

 

1. Lack of Jurisdiction to make the order.

 

1. Nullity of the Order of Mandamus.

 

1. Voidity of the Order having regard to S.308 of the Constitution.

 

1. Incompetence of the Mandamus proceedings.”

 

For the 1st to the 3rd respondents the learned counsel representing them has identified similar issues for determination which read:-

 

1. Does the appellant have the locus standi to apply to set aside the order of Mandamus dated 14/3/2000.

 

2. Whether after having entered judgment in the suit on the merit, the trial judge was not functus officio to entertain the application to set aside the order of Mandamus by a person who was not a party to the case.”

 

The learned counsel for the 4th respondent also posed issues for the determination of the appeal. Some of the issues identified do not tally with the grounds of appeal and as such are not competent or relevant to the appeal filed by the appellant. See P.T.I. v. NESIMOME (1995) 6 NWLR (Pt. 402) 474; Jatau v. Danladi (1995) 8 NWLR (Pt. 415) 592; C.R.S.N. Corp. v. Oni (1995) 1 NWLR (Pt. 371) 270.

 

Before the examination and discussion of the issues submitted for the determination of the appeal, it is appropriate, at this stage to restate the crucial facts leading to this appeal, the 1st to 3rd respondents as the applicants obtained an order of Mandamus compelling the 4th respondent, the Chief of Air Staff, to act pursuant to S. 83 of the Air Force Act Cap. 15 LFN 1990 to dismiss from service or refer to a court Martial for the criminal prosecution of the appellant herein for the offence of alleged cheating in an examination held at Staff and Command college in 1991. The order of mandamus was obtained on the 14/3/2000. The appellant, who was not a party to the proceedings, applied by means of a Motion on notice to set aside the Mandamus Order as it affected him. The 3rd to 4th respondents filed a notice of Preliminary Objection to the appellant’s application the grounds aforementioned. The learned trial judge upheld the objection by deciding that the appellant has no locus standi and that the court is functus officio and in the end struck out the appellant’s application to set aside the Mandamus Order. It is against the Ruling that the appellant has filed the appeal. Now, I shall consider the issues.

 

Issue No. 1

 

Locus Standi

 

It is submitted for the appellant that the learned trial judge was in error when he upheld the preliminary objection that the appellant lacked the necessary standing to complain about the order of Mandamus which incontrovertibly affected him and when the said order was made contrary to Order 47 Rule 5 of the Federal High Court Civil Procedure Rules, when the order was made without jurisdiction and when the order was unconstitutional and void having regard to s. 308 of the Constitution. It is argued that the appellant who is patently affected by the order was not served with the motion of notice as required by Order 47 Rule 5(3) of the aforesaid rules of Court. It is further submitted that since the order materially affected the appellant he has the locus standi to challenge it, the rule of natural justice demands that the appellant be heard before an order affecting him is made vide Order 47 rule 5(3) of the rules. For a court to have jurisdiction over a matter, service of court process is a necessity on the person to be affected by the order. See Odita v. Okwodinma AND Anor. (1969) NSSC 198 at 201. Skenconsult Nigeria Ltd v. Ukey (1981) NSSC 1.

 

It is again submitted that S. 308 of the Constitution which confers upon the appellant absolute immunity from civil and criminal proceedings cannot be invoked to deny the appellant the right of fair hearing when an order sought directly affected him. It is again added that the 1st – 3rd respondents had no locus standi in the application for Mandamus therefore the proceedings were clearly incompetent. See Adesanya v. President of the Fed. Republic (1981) ANLR 1, Egolum v. Obasanjo (1999) FSC (Pt.1) 9 –10, 20-21. It is not shown that the applicants had any right or right or obligation to protect or ventilate. It is further argued that the Air Force Act Cap 15 LFN 1990 on which the applicants predicated their case has ceased to be in force since 1993 when it was repealed by Decree 105 of 1995.

 

It is further submitted that any person affected by an order of court made without jurisdiction or competence is entitled to have the order set aside ex debito justice (sic). See Obimonore v. Erinosho (1966) ANLR 245 at 247, Craig v. Kanssen (1943) KB 256.

 

For the 1st – 3rd respondents, it is submitted that though a person to be affected by an order of Mandamus must be served with the Motion on Notice by virtue of S. 308 (1) of the constitution the service of the process on the appellant is prohibited and accordingly the submission of the appellant’s counsel cannot stand. See Rotimi v. Mcgregor (1974) NSCC 133 at 138, Fawehinmi v. I. G. P. (2000) 7 NWLR (Pt.665) 481, Onabanjo v. Concord Press (1981) 2 NCLR 355 at 408. It is submitted further that there appears to be conflict between S. 34 of the constitution and Order 47 Rule 5(3) of the aforesaid rules on the one hand and S. 308(1) of the Constitution, but S. 308 must prevail. Order 47 rule 5(3) appears to be contrary to S. 308(1) of the Constitution and therefore must give way to the Constitutional provision. See Adigun v. Governor or Oyo State (1987) 2 NWLR (Pt. 56) 197. It is submitted that S. 308 of the Constitution forbids the appellant from being made a defendant or party to the proceedings by the 1st – 3rd respondents and therefore it was the 4th respondent who was sought to be compelled to do his duties under the Air Force Act. It is however, conceded, that since the appellant was directly affected by the order sought, he would ordinarily be put on Notice under the provisions of Order 47 rule 5(3) but in the instant case S. 308 of the constitution forbids him from being put on Notice. See Fawehinmi v. I.G.P (supra). The learned counsel submitted that S.308 of the constitution should be widely and liberally interpreted to make it unconstitutional for the appellant to be or for him to sue. See Rotimi v. Mcgregor (supra);Green v. Green (1987) 3 NWLR (Pt. 61) 480; Aku v. Plateau Publishing Co. Ltd (1985) All NLR 338 at 342; Amata v. Omofuma (1997) 2 NWLR (Pt. 485) 93.

 

It is again submitted that the whole principle of immunity from legal action under section 308 of the Constitution is to keep holders of certain offices like the appellant out of courts in private matters at least while in office. It is submitted that the import of S. 308 of the constitution is that person affected shall not sue of be sued while they remain in office. See Igbe v. Prof. Ambrose Alli (1981) 1 NCLR 129 at 132 – 3.

 

On the question of the locus standi of the 1st – 3rd respondents, it is submitted that as traditional rulers, tax payers and concerned citizens, they have the public duty to demand the Chief of Air Staff to carry out his public or statutory duties. See Fawehinmi v. Akilu (No.1) (1987) 4 NWLR (Pt. 67) 797 at 832. It is further submitted that the respondents have earlier before the commencement of the proceedings requested the Chief of Air Staff to perform his statutory and public duties and he refused. They have the locus standi to seek the court to compel him to perform his duties. See Fawehinmi v. I.G.P. (supra). It is further submitted, that the offence allegedly committed by the appellant was done when the Air Force Act was in force the fact that the Act is no longer alive is of no moment vide Bank of Baroda v. Iyalabani Ltd (1998) 2 NWLR (Pt. 539) 600 at 613.

 

For the 4th Respondent in support of the appeal it is submitted that the trial court was in error to have invoked a spent law, the Airforce Act which was repealed and replaced by the Armed Forces Decree of 1993. In any event by S. 169 (1) of the aforesaid Decree, the 4th respondent is barred from taking any proceedings against the appellant for the limitation period. It is submitted that the 4th respondent would be in breach of the law if he were to obey the order of the trial court. Furthermore under S. 169 (2) of the said Armed Forces Decree of 1995, the appellant ceased to be subject to the Armed Forces law three months after he resigned from the Air Force.

 

It is submitted that the order made violated existing law and was therefore a nullity and incompetent and impossible of being carried out. It is also submitted that as at 14/3/2000, the appellant has no jurisdiction, public duty or statutory duty to perform in relation to the appellant.

 

Now, there is no dispute whatever, and it is rightly conceded by the learned counsel for the 1st – 3rd respondents that the appellant is incontrovertibly affected by the order sought and obtained since the effect of it is to prosecute him for a criminal offence. I also agree that ordinarily the provisions of Order 47 rule 5(3) of the Rules of the Federal High Court make it mandatory that he be put on notice, so that he might be heard before a decision may be reached which will affect him. The main plank of the 1st – 3rd respondent’s argument is that by virtue of section 308 of the Constitution the appellant enjoys immunity from judicial proceedings and therefore orders may be sought and obtained prejudicially affecting him without putting him on notice. Can this proposition be true? In my view and I agree with the learned counsel for the 1st – 3rd respondents that S. 308 should be given wide and liberal interpretation. The immunity conferred on the appellant is to prohibit the issuance of any court process, civil or criminal in any way whatsoever against the appellant while he acts the office to which he is elected. In my view, the intendment of the section under reference is to bar any proceedings civil or criminal which will have the effect of interfering with the running of the office to which the appellant was elected. See S. 308(3) of the Constitution. It clearly does not matter whether the appellant was a party or not, it is the interference and the effect of the order sought that the Constitution prohibits. I would pose the question, if the appellant cannot be directly subjected to any court processes is he to be indirectly affected through the back door? The answer is no!

 

The lower court would appear to have no competence and or jurisdiction to entertain the application in the first place. The purpose of the immunity is defeated by the application for Mandamus against the Chief of Air Staff. Because to compel the Chief of Air Staff to arraign the appellant before the court martial clearly in my view, offends the provisions of S.308 of the Constitution.         Thus the jurisdiction and the competence of the court to make the order or even to issue the process offends the Constitutional provisions. The trial court has not jurisdiction and or competence to compel the 4th respondent to breach Constitutional provisions. The situation in this case is clearly not the same as the position in Fawehinmi v. I.G.P. (supra). In the latter case, what was requested of the Police was merely to investigate the commission of crime by the Governor of Lagos State. There was no question of prosecution or arraignment before a court of law or tribunal. The coercive Order of the court in the instant case was that the Chief of Air Staff was compelled to arraign the appellant before a court martial.

 

It follows that the 1st – 3rd respondents would have no locus standi to invoke the court to act contrary to the provisions of the Constitution. Looking at it from all angles, it appears to me that the court has no competence and or jurisdiction to entertain the application in the first place. Accordingly the Mandamus order made is incurrably bad, nullity and void and any person affected by the order is entitled and has the locus standi to have the order set aside EX-DEBITO JUSTICE. See. Obimonure v. Erinosho (supra). There is nothing under S.308 barring the appellant from having the order set aside. It provides:-

 

“308(l)Notwithstanding anything to the contrary in this Constitution but subject to subsection (2) of this section:

 

1. No Civil or criminal proceedings shall be instituted or continued against a person to whom this section applies during this period of office;

 

1. A person to whom this section applies shall not be arrested or imprisoned during that period either in pursuance of the process of any court or otherwise; and

 

1. no process of any court requiring or compelling the appearance of a person to whom this section applies, shall be applied for or issued.”

 

In my view neither subsection 1(a), (b) or (c) apply in the circumstances of this case, when an order is already made which not only affected the appellant prejudicially and also made in clear breach of the Constitution, prevent the appellant from seeking to set it aside. The learned trial judge was clearly in error to have held that S.308 has robbed the appellant his locus standi to have the order affecting him set aside. In the case of Obih v. Mbakwe (1984) 1 SCNLR 192 at 211 the Supreme Court per Eso J.S.C. in discussing the purpose of S.267 of the 1979 Constitution which is in pari materia with section 308 of the 1999 Constitution said at page 211 thus:-

 

“I think the purpose of section 267 of the 1979 Constitution is clear. It is to prevent the Governor from being inhibited in the performance of his executive functions by fear of Civil or Criminal litigation x x x during his tenure of office.”

 

See also Attorney-General (East) v. Briggs (1965) NMLR 45. In my view such actions as in instant case clearly designed to inhibit the appellant in the performance of his duties are manifestly excluded from the exercises by the court of the judicial powers conferred on the judiciary under S.6(6) of the 1999 Constitution. The appellant clearly has the locus standi to protest against any suit, as a party aggrieved, in which the end result of the action is to detract him from performing his functions as an elected Governor. On the other hand, it would appear to me that the 1st – 3rd respondents would have no locus standi to institute the action, since locus standi can only a rise from a right conferred on a party by law. See Onyia v. Governor-in-Council (1962) WNLR 89 at 91. Even if the 1st – 3rd respondents have a right conferred by law, the right has been extinguished by S.308 of the Constitution. The relief of Mandamus will not lie if the act to be done will fall foul with the provisions of the law or the Constitution. See The Republic v. Registrar of Trade Mark (1967) NMLR 324. See also Rotimi AND Anor v. McGregor (supra). Order of Mandamus should be refused once it has become clear that there is an impossibility of its performance. See Queen v. Resident Ijebu Province (1959) WRNLR 87. A court must not make an order in the circumstances of this case, which is unenforceable, ineffective, impotent, abortive or impossible to obey. See Ekpenyong v. Nyong (1975) 2 SC 71, Agbaje v. Agboluaje (1970) 1 ALL NLR 21. Considering all the circumstances of this case, I have come to the inevitable conclusion that the appellant has the right and indeed the duty to apply to set aside the order of Mandamus made by the learned trial judge and as mentioned above there is nothing under S.308 (1)(a) (b) or (c) prohibiting the appellant from challenging the suit and seeking to have it set aside. The learned trial judge was therefore in grave error to have held that the appellant has no locus standi. I resolve the first issues in favour of the appellant.

 

ISSUE TWO

 

Whether the lower court was right in refusing to set aside the Order of Mandamus on the ground that it was functus officio. It is submitted for the appellant, that the learned trial judge was in error to have so held having regard to the seven grounds relied upon to set aside the order. The grounds include lack of jurisdiction on the part of the court to entertain and grant the application, lack of legal standing on the part of the applicants, thus the incompetency of the proceedings and other grounds which would clearly establish the nullity of the proceedings and the resultant order. It is submitted that the court has in the circumstances enumerated above, the inherent jurisdiction to set aside its orders. The learned trial judge refused to follow decisions of the Supreme Court in this regard. Learned counsel referred to Obimonore v. Erinosho (supra) Skenconsult (supra); Madukolu v. Nkemdilim (1962) 1 All NLR 587; Odita v. Okwudinma (1969) ANLR 220 and Layanju v. Araoye (1959) 4 FSC 154.

 

For the Ist – 3rd respondents, it is submitted that the grounds for setting aside the Mandamus order were baseless and unproved and that the provisions of immunity under S.308 is a shield and not a sword to kill any action vide Fawehinmi v. I.G.P. (supra) Onabanjo v. Concord Press (1981) 2 NLR 355. It is submitted that since the appellant was not joined in the suit nor served with any process, he has not locus standi to apply to set aside the proceedings.

 

In my humble view, the 1st to 3rd respondents did not in their brief properly meet the arguments of the appellant’s counsel in that he submitted that the learned trial judge acted erroneously when he held that he was functus officio to set aside his own order. What the learned trial judge said in his ruling was simply:-

 

“As far as this court is concerned, the ruling made on 14/3/2000 was a considered ruling. It was not made ex-parte, therefore this court cannot set aside the said ruling, the Court has become functus officio.”

 

Now, the law has been settled by a number of cases that every court of record has inherent jurisdiction to set aside on a proper application before it, its null orders and judgments given without jurisdiction or competence. See Sken Consult supra. Tabaa v. Lababadi (1974) 4 SC 139. It is not every time a court delivers a judgment or in order if the judgment or order is a nullity for reasons of want of competence or jurisdiction. This is based on the principle. In Nihillio Nihil Venit meaning “out of nothing, nothing comes or flows”. See Yakubu v. Governor of Kogi State (1997) 7 NWLR (Pt. 511) 66 at 87. See also Tor Tiv v. Wombo (1996) 9 NWLR (Pt. 471) 161- where it was held that a court can set aside its own judgment obtained by fraud or concealment of material facts. See also Ogbu v. Orum (1981) 4 SC 1; Tom v. Ameh (1992) 1 NWLR (Pt. 217) 306; A.C.B. v. Losoda (Nig) Ltd. (1992) 2 NWLR (Pt. 255) 572.

 

Since the application before the court was to set aside the orders of Mandamus made which the appellant prayed to be set aside on the grounds of lack of jurisdiction and competence, fraud and so on, the learned trial judge has the inherent jurisdiction to hear the application on its merit and reach appropriate conclusion. The authorities are settled that the court has inherent jurisdiction in such a situation to set aside its decision. I accordingly also resolve the second issue in favour of the appellant. The two issues having been resolved in favour of the appellant, this appeal deserves to succeed and I hereby allow it. The decision of the learned trial judge upholding the preliminary objection is set aside and in its place the preliminary objection is overruled and struck out.

 

It is conceded by the learned counsel for the 1st – 3rd respondents that this Court under the provisions of S.16 of the Court of Appeal Act is empowered to consider the appellant’s application to set aside the Order of Mandamus. While discussing the other aspects of the appeal, I dwelt on the issue of the competence of the lst – 3rd respondents to initiate the proceedings, that is their locus standi, I have also discussed the competence and the jurisdiction of the trial court to entertain the application in the first place. I come to the inevitable conclusion that the application and the proceedings including the Order of Mandamus are null, void and unconstitutional. I need not repeat them here.

 

Suffice it for me to allow the appellant’s application. I accordingly order as follows:

 

1. The ex-parte order granting leave to the applicants to apply for an Order of Mandamus is hereby set aside, vacated and annulled.

 

2. The Ruling of the trial court on 14/3/2000 including the Order of Mandamus commanding the 4th Respondent, the Chief of Air Staff to act pursuant to S. 83 of the Air Force Act Cap 15 LFN 1990 to dismiss the appellant from the Air Force and/or refer the appellant for trial by a Court Martial for the alleged offence of cheating at examination at Command and Staff College Jaji, Course No. 14 of 1991, is set aside, vacated and annulled.

 

The appellant is entitled to his costs both at the lower court and this Court, which I assess at N3,500.00 and N7,500. 00 respectively jointly and severally against the 1st – 3rd respondents. I make no order as to costs in respect of the 4th respondent.

 

ZAINAB A. BULKACHUWA, J.C.A.:I have read before now the lead judgment just delivered by my learned brother, Musdapher, J.C.A. I agree with the reasoning and conclusions reached therein and adopt them as mine. I allow the application and abide by all consequential orders in the lead judgment including orders as to costs.

 

ALBERT GBADEBO ODUYEMI, J.C.A.:

 

I have had the privilege of a preview of the judgment just read by my Lord, Hon. Justice Dahiru Musdapher, J.C.A. I am in entire agreement with the reasoning and conclusions of his Lordship which I adopt as mine. I agree that the appeal has merit and should be allowed. I am also in full agreement with the award of costs and I adopt the same.

 

Cases referred to in the judgment

A.C.B. v. Losada (Nig) Ltd. (1992) 2 NWLR (Pt 255) 572.

Agbaje v. Agboluaje (1970) 1 All NLR 21.

Attorney General (East) v. Briggs (1965) NMLR 45.

Ekpenyong v. Nyong (1975) 2 SC 71

Fawehinmi v. I.G.P. (2000) 7 NWLR (Pt. 665) 481.

Obih v. Mbakwe (1984) 1 SCNLR 192.

Obimonure v. Erinosho (1966)1 All NLR 250.

Ogbu v. Urum (1981) 4 SC.1

Onyia v. Governor-in-Council (1962) WNLR 89.

Queen v. Resident Ijebu Province (1959 ) WRN R 87.

Rotimi AND Anor v. Mcgregor (1974) 11 SC 133.

Skenconsult Nigeria v. Ukey (1981) NSSC 1; (1981) 1 SC 6.

Tabaa v. Lababedi (1974) 4 SC 139.

The Republic v. Registrar of Trade Mark (1967) NML 324.

Tom v. Ameh (1992) 1 NWLR (Pt 217) 306

Tor Tiv v. Wombo (1996) 9 NWLR (Pt. 571) 161

Yakubu v. Governor of Kogi State (1997) 7 NWLR (Pt. 511) 66.

 

Statutes referred to in the judgment

Constitution of the Federal Republic of Nigeria 1979, Section 267

Constitution of the Federal Republic of Nigeria 1999, Sections 6(6) AND 308

Air Force Act Cap 15 LFN 1990 Section 83 (repealed by Decree 105 of 1995.)

Rules of Court referred to in the judgment

Federal High Court Rules (Civil Procedure) Rules 1999