ALHAJI ABBA DALORI V. ALHAJI ABUBAKAR SADIKWU (1998)

Background

The dispute concerned title to land at Baga Road, Bolori Layout, Maiduguri. In suit No. BOM/8/79, the respondent obtained a High Court judgment declaring title in his favour and ordering the appellant and his co-defendants to give vacant possession and demolish structures on the land within 90 days. The appellant appealed. The Court of Appeal declared the proceedings and judgment null and void for want of jurisdiction because the land was subject to a customary right of occupancy and jurisdiction lay in the Area Court under section 39 of the Land Use Act, 1978. The Supreme Court dismissed the respondent’s further appeal and affirmed that decision.

The respondent subsequently commenced a fresh action, suit No. M/7/97, against the appellant. The appellant applied for a stay of proceedings and for an order restoring him to possession pending determination of the fresh suit. The High Court dismissed the application on the basis that the earlier judgment had been declared a nullity and that a declaratory judgment was non-executory. The appellant appealed to the Court of Appeal.

Issues

1. Whether the trial court failed to make a specific finding on whether the appellant had been evicted pursuant to the earlier judgment.
2. Whether the appellant was entitled to restoration of possession pending determination of suit No. M/7/97.
3. Whether arguments concerning the transfer of the case could be considered when that issue was not covered by the grounds of appeal.

Ratio Decidendi

An issue for determination that is not supported by the grounds of appeal is incompetent and will not be considered. Although a court generally has a duty to pronounce on all material issues, failure to do so is not necessarily fatal where it has not occasioned a miscarriage of justice, and the court need not separately determine an issue subsumed in another issue already decided.

A judgment or order declared null and void is treated as having never existed. It creates no rights or legal obligations and is unenforceable by either party. Its reasoning may nevertheless remain available as opinion for use in argument in a subsequent case. A declaratory judgment determines the legal relationship between the parties but does not itself contain a coercive order capable of enforcement. However, the right asserted by the appellant was not directly derived from the nullified judgment or from the appellate declarations; it arose incidentally from his prior physical possession of the land and the effect of nullifying the order that had displaced him.

Court Findings

The Court of Appeal held that the order in the earlier High Court judgment directing the defendants to give vacant possession and demolish their structures showed that the appellant had been dispossessed pursuant to that order. The respondent’s contrary affidavit assertion was therefore incorrect, and the trial court had not properly dealt with the eviction issue.

The appellate court agreed that the earlier judgment, having been declared null and void, could not itself confer enforceable rights. It nevertheless held that this conclusion supported, rather than defeated, restoration of the appellant to the position existing before the invalid judgment. The appellate judgments did not contain an express consequential order of restoration, but the appellant’s claim was based on his prior possession and was not an attempt to enforce the nullified judgment.

Arguments concerning the trial judge’s alleged transfer of the case were excluded because the matter was not raised by the grounds of appeal.

Conclusion

The appeal was unanimously allowed. The ruling of Kolo, C.J., delivered on 22 April 1997, was set aside. The appellant was ordered to be restored to possession of the disputed land pending determination of suit No. M/7/97. Costs of N2,000 were awarded to the appellant against the respondent.

Significance

The decision clarifies the legal consequences of a judgment declared a nullity: it has no coercive, binding or enforceable effect, but practical consequences flowing from the invalid order may require correction. It also distinguishes between enforcing a nullified judgment and restoring the status quo that existed before the invalid judgment, while explaining the limited but legally significant effect of declaratory judgments.