MR. SAFIU SALAWU OYEDEMI (ALIAS SADO) V. MRS. DEBORA FALADE (2021)

Background

This appeal arose from a land dispute concerning a parcel measuring approximately 2,684.284 square metres along Oko/Oshogbo Road, Oyo State. Mrs. Debora Falade had earlier instituted suit No. HOG/55/2006 against Mr. Safiu Salawu Oyedemi, also known as Sado, claiming, among other reliefs, a declaration of title to the disputed land. During the pendency of that case, the trial court granted an interlocutory injunction restraining Oyedemi from continuing construction on the property. Despite the order, construction continued.

Oyedemi’s counsel later withdrew from the case after stating that he had not seen his client for more than a year. The High Court directed that hearing notices be served personally on Oyedemi. The matter thereafter proceeded in his absence. Although the record contained proofs of service and the case was adjourned on several occasions to enable him to cross-examine the respondent’s witnesses and present his defence, he did not attend. On 31 March 2014, the High Court delivered judgment in Falade’s favour. The building on the land was subsequently sealed pursuant to a court order.

Oyedemi made several applications seeking access to the building, extension of time to apply to set aside the judgment, and an order setting aside the judgment. Those applications were unsuccessful. He subsequently commenced a fresh action, HOG/7/2017, suing through his sister, seeking to set aside the judgment and orders in HOG/55/2006 and to relist the earlier suit for trial. Falade responded with a motion seeking dismissal or striking out of the fresh action for want of jurisdiction, abuse of process and the impropriety of inviting the court to sit on appeal over its own decision. The High Court dismissed the fresh action, holding that it was functus officio.

Issues

1. Whether Falade’s motion to dismiss or strike out the fresh action was an incompetent demurrer, particularly because no statement of defence had been filed.
2. Whether the High Court was right to dismiss suit No. HOG/7/2017 without hearing it on the merits.

Ratio Decidendi

The Court of Appeal dismissed the appeal and affirmed the ruling of the High Court. It held that the motion was not a demurrer. A demurrer ordinarily assumes the truth of the claimant’s pleaded facts and contends that, even on that assumption, the claimant has no sustainable cause of action. By contrast, Falade’s motion challenged the jurisdiction and competence of the fresh action on grounds including abuse of court process, improper constitution of the action and the attempt to reopen a matter already finally determined. A jurisdictional objection may be raised at any stage and may be considered before, or without, the filing of a defence.

The court emphasised that jurisdiction is determined primarily from the writ of summons and statement of claim. The rules abolishing demurrer therefore did not prevent the respondent from challenging the court’s jurisdiction. The preliminary objection contained in the respondent’s brief was, however, struck out because counsel failed to seek leave to move it formally at the hearing. A preliminary objection must be formally moved; otherwise, it is treated as abandoned.

The court further held that a final judgment is one that determines the rights of the parties and disposes of the subject matter on its merits. Once such a judgment has been delivered, the court becomes functus officio and cannot revisit the rights already determined. Although a court of record possesses inherent jurisdiction to set aside its own judgment where a fundamental defect, such as lack of service, has rendered the judgment a nullity, no such defect was established in this case.

Court Findings

The Court found that the earlier case had not been a mere administrative or provisional proceeding. Evidence had been called, the respondent and her witnesses had testified, and judgment had been delivered after the court considered the case. The complaint that hearing notices had not been served had already been considered in the earlier proceedings. The record contained proofs of service, and the bailiff’s affidavit of service raised a presumption that service had been effected.

That presumption could only be rebutted by credible contrary evidence, ordinarily through a counter-affidavit containing specific facts denying service. Oyedemi failed to provide such evidence in the relevant proceedings. The Court also held that a litigant has a duty to be diligent in prosecuting his case and cannot ordinarily obtain indulgence after knowingly or negligently allowing proceedings to continue in his absence.

Although the Court noted that a defendant may challenge the capacity or authority of a claimant to sue, that challenge must be brought by a motion or preliminary objection. The respondent had not properly filed such a challenge to the authority of Oyedemi’s sister. Nevertheless, the substantive conclusion remained that the fresh action was incompetent as an attempt to reopen a final decision. There is only one High Court in a state for purposes of the principle that judges of coordinate jurisdiction cannot reverse or vary one another’s decisions. The court hearing HOG/7/2017 could not sit as an appellate court over the judgment in HOG/55/2006.

Conclusion

The appeal was held to be unmeritorious and was dismissed. The ruling of the Oyo State High Court, Ogbomosho Judicial Division, delivered on 12 July 2017 in suit No. HOG/7/2017 was affirmed. The appellant was ordered to pay N100,000 as costs to the respondent.

Significance

The decision reinforces the need for finality in litigation and distinguishes a true demurrer from a jurisdictional objection. It confirms that an action seeking to use a fresh suit to set aside a final judgment or relitigate issues already determined may constitute an abuse of court process. It also demonstrates the importance of challenging service promptly and with credible affidavit evidence, while reminding litigants that procedural neglect and repeated applications cannot ordinarily be used to revive a concluded dispute.