An Examination of the Legal Effects of Null and Void Judgements: Rights and Obligations for Parties
Akin Olawale Oluwadayisi*
Abstract
We live in an era where every man is easily moved to pervert justice to his or her favour. The judiciary and some judicial personnel being human too equally are not exonerated from this contagious attitude. Such that if every judgement were to be examined critically, you will notice that few are bedevilled with errors in law or errors of injustice which should not be heard of the third arm of government. This article examines the concept of judgement, what validates judgement, what is null and void judgement, the effect of null and void judgement and to examine whether or not null and void judgement can determine any rights and obligations for the parties.
1. Introduction
Judgement has been defined as ‘the reasoned and binding judicial decision of the court delivered at the end of the trial.’[1] Section 294(1) 1999 Constitution (as amended) states:
Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of the evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
Every court here refers to section 6 of the Constitution which lists all superior courts including Supreme Court. It is necessary that a court delivers its judgement within time. Failure to comply with section 294(2) of the Constitution[2] will lead to a judgement being declared null and void if the appellate or reviewing court is satisfied that the party complaining of the non-compliance has suffered a miscarriage of justice by reason of that non-compliance.[3] This position under the 1999 Constitution (as amended) deviate from what it used to be under the 1979 Constitution[4] where non-compliance with the provision automatically leads to the judgement being declared null and void whether it occasioned miscarriage of justice or not.
The court defined judgement as a binding, authentic, official and judicial determination of the court in respect of claims and in an action before the court of law.[5] Section 318(1) of the 1999 Constitution(as amended) makes use of the word “decision” and defines it to mean “…any determination of that court and includes Judgement, act, order, conviction, sentence or recommendation”.
In addition to the express provision of section 294(1) mentioned above, a valid judgement must equally posses some essential elements. It has also been held that a Judgement must demonstrate a full dispassionate consideration of the issues properly raised and heard and the result reached must reflect such exercise. A Judgement can only be for what is claimed or less but never more. The court cannot grant what is not claimed because the court cannot be mistaken for a ‘Father Christmas’.[6]
2. What is the meaning of a null and void judgement?
Null and void is described from the perspective of its effect to mean a judgement that has no legal force or effect, the invalidity of which may be asserted by any party whose rights are affected at any time and at any place whether directly or collaterally. Thus, from its inception, a void judgement continues to be absolutely incapable of being affirmed, ratified or enforced in any manner to any degree. One source of a void judgement is the lack of subject matter jurisdiction.[7] The word ‘void’ means: “empty; without force; of no legal effect; a nullity from its beginning.”[8] When an act is declared null and void, the position is that from the angle of the law, the act never took place. It is completely wiped off and considered as extinct and deemed never to have existed.[9]
Jurisprudentially, Res judicata (i.e. finality of litigation on a matter) consequences will not be applied to a void judgement such as to deprive the decision or the judgement of the character of a legitimate adjudication.[10]
3. What Constitutes a Null and Void Judgement?
For a judgement not to be declared null and void or to be seen as valid, these factors must constitute the yardstick for such consideration.
3.1 Time for Delivery of Judgements
The Supreme Court in its unreported judgement in Abubakar v. Nasamu[11] restated that the time fixed by the Constitution cannot be altered extended, expanded, elongated etc by any court in the purported exercise of a discretion to that effect.[12] The court dealt with the correctness or otherwise of the practice of the Court of Appeal in giving its decision and reserving its reasons for judgement to a later date. Due to the understandable pressure on the various divisions of the Court of Appeal, this was a common and widespread practice. Section 285(7) and (8) provides as follows;
285(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within sixty (60) days from the date of the delivery of judgement of the tribunal or Court of Appeal.
285(8) The court in all final appeals from an election tribunal or court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.
The Supreme Court held that the practice was contrary to the section 287(7) of the 1999 Constitution in cases such as Governorship petition appeals where the court of appeal is no longer the final court. The phrase “Final appeals” in the said sub-section was held to relate to:
The final court beyond which there is no further appeals; the last chance/ bus stop….
The (Court’s) decision and reasons for same both constitute the judgement and must go hand in hand and must come within the time allotted in the Constitution for both to be valid and subsisting.[13]
Where both are not done within the time limit the decision is null and void and will be set aside, notwithstanding the provisions of section 294(5) of the Constitution, which provides that judgement outside the prescribed period does not automatically render it a nullity or liable to being set aside where it does not occasion a miscarriage of justice. This provision was held not to be applicable to election petitions, but only to other cases. The effect of this factor is that a judgement given in contravention of this requirement is illegal, unconstitutional and null and void.[14]
The judgement of Court of Appeal will be nullified where it adopted the practice of giving decision and reason later when it is not the final court in that regard.[15]
3.2 Slip Rule
Though the general rule is that once a court delivers its final judgement in a suit, a judge becomes functus officio in that suit and as such cannot re-open or review it.[16] There are exceptions where:
- An ancillary Order is to be made,
- In respect of an application made under the slip rule by any of the parties.[17]
The effect of this factor is that failure under this heading will not lead to a judgement being declared null and void. At best, it can be corrected for records to be put in order.
3.3 Fraud
Where a party is aware that a judgement was based on forged information or was obtained by fraud, he must take immediate step to set aside that decision. The condition to set it aside is that the judgement complained of must be a direct consequence of fraud otherwise no basis or ground exists for setting it aside.[18]
Consequently, section 294 and section 6 of 1999 Constitution (as amended) implies that the Supreme Court judgement can be reviewed where it is established that it was obtained by fraud (i.e. forged information).[19]
3.4 Error in Law
The implication of a decision based on error in law is that it is null and void.[20] An error in law is a serious murder of justice. It means to misapply the law where the law is saying something else. Error in law is like killing law itself. In the days of substantial justice and judicial activism, many of such judgements are often reversed and declared null and void regardless of who delivers it. One thing that cannot be played or should not be played wit in the legal profession is muddling the law. It is an instrument to pervert justice if allowed to thrive. According to Wellington:
The interpretation of legislation is the constitutional responsibility of the courts: this function is squarely within the courts’ core expertise and institutional competence. The courts no longer distinguish between jurisdictional and non-jurisdictional errors of law: if an administrative decision-maker errs in law, then their decision is unlawful and liable to be set aside. Put another way, administrative decision-makers do not have any discretion in interpreting the law, or any jurisdiction to interpret the law incorrectly.[21]
4. What is the Effect of a Null and Void Judgement?
The law regarding the position of any judgement or order of Court which is a nullity for any reason whatsoever, is that the Court in its inherent jurisdiction is entitled ex debito justitiae to have that judgement or order set aside on the application of an affected or aggrieved party or even suo motu by the Court itself.[22] The effect of a null and void judgement is that it can and should be set aside even at the apex court of the land. The law is that “where the decision of a court is regarded as a nullity, the party affected by it is entitled ex-debilo justiliae to have it set aside.”[23]
In the case of Dingyadi v. INEC,[24] Justice Adekeye JSC held that the Supreme Court possesses inherent power to set aside its own judgement in appropriate cases where the following can be established:
- When the judgement is obtained by fraud or deceit either in the court or of one or more of the parties.
- Where the judgement is a nullity and a person affected by the order of court which can be described as a nullity is entitled ex debito justitiae to have it set aside.
- When it is obvious that the court was misled into giving judgement under a mistaken belief that the parties consented to it.
- Where the judgement was given in the absence of jurisdiction.
- Where the procedure adopted was such as to deprive the decision or judgement of the character of legitimate adjudication.
This decision appears to be the subsisting, valid and current supreme court position; it is the law of our land! It makes the point without more.[25] The Supreme Court again in its unreported judgement in Abubakar v Nasamu[26] restated that the time fixed by the Constitution cannot be altered extended, expanded, elongated, etc, by any court in the purported exercise of a discretion to that effect. (as per Onnoghen JSC who delivered the lead judgement). The Appeal dealt with the correctness or otherwise of the practice of the Court of Appeal giving its decision and reserving its reasons for judgement to a later date.
Section 285(7) and (8) of the 1999 Constitution provides as follows;
285(7) An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within sixty (60) days from the date of the delivery of judgement of the tribunal or Court of Appeal.
285(8) The court in all final appeals from an election tribunal or court may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.
The Supreme Court held that the practice was contrary to the section 287(7) of the 1999 constitution (as amended) in cases (such as Governorship petition appeals) where the court of appeal is no longer the final court. “Final appeals” in the said sub section was held to relate to:
The final court beyond which there is no further appeals; the last chance/bus stop….
The (Court’s) decision and reasons for same both constitute the judgement and must go hand in hand and must come within the time allotted in the Constitution for both to be valid and subsisting.
Where both are not done within the time limit, the decision is null and void and will be set aside, notwithstanding the provisions of section 294(5) of the Constitution which provides that judgement outside the prescribed period does not automatically render it a nullity or liable to being set aside where it does not occasion a miscarriage of justice.
The provision of section 294(5) of the Constitution was held not to be applicable to election petitions (for which the time prescribed by the constitution cannot be extended whether for the court to give its decision or the reason for the decision!). Based on constitutional sovereignty therefore, the judgement of Court of Appeal will be nullified where it adopted the practice of giving decision and reason later especially outside of the prescribed time frame when it is not the final court in that regard. This was the Supreme Court’s decision in Abubakar v Nasamu.[27] Therefore, even very recently, following the principle of stare decisis i.e. judicial precedence of the Supreme Court, again in the Governorship election petition matter of PDP v. Okorocha,[28] the effect of this factor is that a judgement given in contravention of this requirement was held to be illegal, unconstitutional and null and void.
By and large, concerning the effect of a void judgement, we are of the opinion that such a judgement is simply nugatory; useless and avails no purpose to its purported ‘beneficiary’, and neither does it bind its presumed loser! It goes to no legal consequence or effect!
5. Can a null and void judgement determine any rights and obligations for the parties?
Having understood what null and void judgement is and the its legal effect, it is now crucial to examine if a null and void judgement can determine any rights and obligations for any of the parties to the action or on appeal. The position here is that any order made by a court of law predicated on a null judgement is itself null and void. Thus, the execution carried out is null and void. It is as good as having not taken place.[29] Under the Common law authority of Banco Espanol-Filipino v Palanca[30] it was held that:
A null judgement for want of jurisdiction is no judgement at all. It cannot be the source of any right nor creator of any obligation. In the obiter of Niki Tobi JCA (as he then was), “One can add something to something, but one cannot add something to nothing because there will be nothing to receive the ‘something’. The ‘something’ which will have nothing to support it will fall away, following Newton’s law of gravity or gravitation.[31]
By implication, a respondent at the appellate court cannot raise a cross appeal or raise a preliminary objection to sustain the null and void judgement of the lower court from which the now respondent at the higher court purport to benefit. I agree with the view that such a cross appeal or self-awarded right to preliminarily object would be an exercise in legal futility. Any process and writ of execution based on a nullity is void and therefore misguided ab initio. As it was opined by Tobi JCA (as he then was) in Owners M/V Baco Liner 3 v Adeniji,[32] such claim of benefit by the respondent remains only ‘something’ trying to stand or be supported by ‘nothing.’ It will surely eventually ‘fall away’ in a natural obedience to the Newtonian ‘law of gravity’. The drastic penalty for a matter marooned in a nullity is not a matter for conjecture.
In the case of Okoye v Nigeria Const. & Furniture Co. Ltd.,[33] the Supreme Court[34] vividly captured the caustic aftermath of a nullity thus:- “When a thing is a nullity, it is as if the thing never existed.… when a judgement or order is a nullity it is as if it was never given or made. It can be set aside without much ado.”[35]
Besides, a null decision or proceeding savours of a hollow victory in the sense that it bestows no enforceable right on its beneficiary nor does it impose any obligation on the losing or victim party.[36] The Supreme, Court had set a seal on this principle.[37]
It is important to mention that there are legal consequences when an appeal against a court of appeal judgement, which an aggrieved appellant considers a nullity at law, succeeds at the Supreme Court. For instance, under section 258(1) the 1979 Constitution, the Supreme Court, where it finds competence and merit in such appeals against a null and void judgement, proceeded to set aside the nullity and remitted same cases back to the Court of Appeal to be heard and determined by a fresh panel of Justices of Court of Appeal.
However, currently, there is a legal problem with the strict interpretation of section 285(7) of the 1999 Constitution (as amended) which is pari material with section 258(1) 1979 Constitution as it affects election matters sui generis. To overcome the legal problem above, only two (2) options are available to the Supreme Court, viz:
- either affirm the reliefs being sought in the Petition of the Appellant; or
- Suo moto, invoke Section 22 of the Supreme Court Act to seize jurisdiction over and determine the competence and merit of the Appeal.[38]
In any instance where an appellate court pronounces the judgement of a lower court a nullity, (i.e., of no legal effect whatsoever and incapable of confirmation, ratification or enforcement in any way whatsoever), consequential steps that the appellate court take to meet the ends of justice abound. Ordinarily, a decision not reached on the merit does not create res judicata. Within the epistemology of natural justice, a void judgement cannot found a res judicata.[39] It is submitted that when an appeal against a null judgement succeeds at the Supreme Court, it is either the apex Court affirms the reliefs being sought by the Appellant; or suo moto, invokes Section 22 of the Supreme Court Act to seize jurisdiction over and determine the competence and merit of the Appeal.[40]
In Amaechi v. INEC,[41] the Supreme Court relied on the maxim and principle ubi jus ibi remedium,[42] Oguntade, JSC (as he then was) relying on Section 6(6) (a) of the 1999 Constitution and Section 22 of the Supreme Court Act stated that “…It enables a court to grant consequential reliefs in the interest of justice…”. The argument becomes even more apposite in view of the concurring judgement of Musdapher[43] where His Lordship stated that: “On the principle of ubi jus ibi remedium, if the Court is satisfied that a person has suffered a legal injury, it will surely provide a remedy irrespective of the fact that no remedy is provided either by common law or statute.” This same legal principle and subsisting precedent of the Supreme Court should apply in all matter in order for justice to prevail and be seen to have prevailed.[44] In Ishola v Ajiboye,[45] Ogundare, JSC, in delivering the lead judgement of the Supreme Court, stated, inter alia, that: “…Constitutional provisions dealing with the same subject are to be construed together.” This guarantees the orderly development of the law, the administration of fair justice and necessary citizen confidence in an objective judiciary.
The court can take a decision per incuriam though not advisable in most cases because it lacks requisite authorities to rely upon. It is equally a bad precedent to follow. However, it may be useful in few instances where substantial justice has been done to make up for the lacuna in the law. It actually means that the Supreme Court acted ‘per ignorantia’! However, professional decorum and judicial protocol does not permit an advocate to stand on the floor of the Court and tell the Justices of the Supreme Court that they have acted ignorantly of the law. As a result, advocate will diplomatically say that the Justices of the Supreme Court simply, without advertence, did not ‘advert’ their minds to all of the available law on the matter in reaching their decision. Nevertheless, the implication of a decision based on error in law (even by the Supreme Court) is that the decision is null and void and consequently subject to review by the Court.[46]
6. Conclusion
This article has examined the concept of judgement, what validates judgement, what is null and void judgement, the effect of null and void judgement and the question whether or not null and void judgement can determine any rights and obligations for the parties. It resolves that as much as it is not good enough to subject judicial decisions to intermittent upturn as a result of every minutest excuse, it is equally not a good practice to believe that an obviously erroneous decision of even the Supreme Court of Nigeria cannot be reviewed. In our view, to be aware of the possibility of reviewing a decision of a court that is null and void by virtue of its non-compliance with the constitution or substantial justice is to make the Judges sit up and be cautious of every decision made. In fact, this will go a long way to reduce decisions made per incuriam and perversed judgements especially in election petition cases.
Therefore, advocates must with the needed courage and boldness, assert to the apex court that its decision can be reviewed where such decision is based on a nullity. It may not be desirable by the Justices as well as the entire legal profession seeing the apex court reversing itself; notwithstanding, it is the duty of judicial officers to uphold the extant law and do justice as the case demands.
* Lecturer, Adekunle Ajasin University, Akungba Akoko, Ondo State and Ph.D Research Candidate, University of Ilorin, Ilorin, Nigeria. Email: akinben66@yahoo.com.
[1] See Fidelis Nwadialo, Civil Procedure in Nigeria, (2nd Edition), (Lagos: University of Lagos Press, 2000), p.704.
[2] It states that “Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion: Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgement is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.’
[3] Ojokolobo v. Adamu (1987) 3 NWLR 377; Onagoruwa v. State (1993) 7 NWLR 49 at 109 C.A.; Olokotintin v. Sarumi (1997) 1 NWLR 222. C.A.; Ogundele v. Fasu (1999) 9 SCNJ 105 at 112. Section 294(4) & (5) Constitution of Federal Republic of Nigeria.
[4] Section 258 (1) the 1979 Constitution
[5] Saraki v Kotoye (1992) 9 NWLR (Pt. 264) 186.
[6] See Ekpenyong v Inyang Effiong (1975) 2 SC 71.
[7] Brian A. Garner (ed)., Black’s Law Dictionary, 8TH ed. p. 1096.
[8] Curzon L.B. & P.H. Richards, The Longman Dictionary of Law, 7TH ed. (2007), p.611. This word was also used in the Holy Bible-Genesis chapter 1 to mean the same thing.
[9] Adefulu v Okulaja (1996) 9 NWLR (Pt. 475) 668” as per Oguntade, JSC.
[10] See Dingyadi v INEC (2010) All FWLR (Pt. 550) 1204.
[11] (2011) All FWLR Pt. 630 p. 1207 at p. 1217.
[12] Per Onnoghen JSC who again delivered the leading judgement.
[13] Abubakar v Nasamu Supra.
[14] As held in the election petition case of PDP v Okorocha (2012) All FWLR Pt. 626 p.499 at p.458.
[15] See also Abubakar v Nasamu (2011) All FWLR Pt. 630 p. 1207 at p. 1217.
[16] See Emodi v Kwento (1996) 2 SCJ 134 at 164.
[17] See Ekerete v Udo Enwe Eke of Ikot Eyo (1925) 6 NLR 118-119; Dingyadi v INEC (2011) All FWLR (Pt. 581) p. 1426 particularly at p. 1436.
[18] See Mkpedem v Gov, Akwa Ibom State (2011) All FWLR Part 575 p.401
[19] See Olufinmise v Falana (1990) 3 NWLR (Pt. 136) 1; Anatogu v Iweka II (1995) 8 NWLR (Pt. 415) 547; Arowolo v Ifabiyi (2002) FWLR (Pt. 95) 296.
[20] As held in Federal Govt of Nig. v Olaolu (2011) All FWLR All (Pt.598) p. 977 at p. 582.
[21] David Goddard QC, ‘Review For Error of Law – Some Comments’, p.68, available at: chambers.co.nz/…/David%20Goddard%20 QC%20-%20 Judicial %20Review. Pdf Accessed 20th March, 2016, last accessed 32/04/2016.
[22] See Dingyadi v INEC (2010) All FWLR (pt. 550) at page 1269A-D as per Mohammed, JSC.
[23] See Obimonure v Erinosho (1966) 1 All NLR 250; Ogbu v Urum (1981) 4 SC; Nwosu v Udeaja (1990) 1 NWLR (Pt. 125) 180; Aladegbemi v Fasanmade (1988) 3 NWLR (Pt. 81) 129; Okafor v A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659) Per Owoade, JCA.
[24] (2011) All FWLR (Pt. 581) p. 1426 particularly at p. 1432.
[25] See also Berliet (Nig.) Ltd. v Kachalla (1995) 9 NWLR (Pt. 420) 478; Olurotimi v Ige (1993) 8 NWLR (Pt. 311) 257; Umunna v Okwuraime (1978) 11 NSCC 319; Ogunsola v NICON (1996) 1 NWLR (Pt. 423) 126; Asiyabi v Adeniji (1967) All NLR 88; Adigun v Attorney General, Oyo State (1987) 2 NWLR (Pt. 56) 97; Oyeyipo v Oyinloye (1987) 1 NWLR (Pt. 50) 356; Adigun v Secretary Iwo Local Government (1999) 8 NWLR (pt. 613) 30; Stirling Civil Eng. (Nig) Ltd. v Yahaya (2005) All FWLR (Pt. 263) 628; Alaka v Adekunle (1959) LLR 76; Flower v Lloyd (1877) 6 Ch.D 297; Olufunmise v Falana (1990)3 NWLR Pt. (1990) 3 NWLR (pt. 136) 1.
[26] (2011) All FWLR Pt. 630 p. 1207 at p. 1217.
[27] [2011] All FWLR Pt. 630 p. 1207 at p. 1217.
[28] [2012] All FWLR Pt. 626 p.499 at p.458.
[29] Per Aderemi, J.C.A. in S.B.N. Plc. v Crown Star & Co. Ltd. [2003] 6 NWLR (Pt.815)1 P. 20, Paras. D-F.
[30] (1918) 37 PHIL. 921, 949.
[31] Similar case is Owners M/V Baco Liner 3 v Adeniji (1993) 2 NWLR (Pt. 274) 202.
[32] Supra.
[33] (1991) 6 NWLR (Pt. 199) 501 at 539.
[34] per Nnaemeka-Agu, JSC,
[35] See also Bello v INEC (2010) 8 NWLR (Pt. 1196) 342
[36] See Oyeneyin v Akinkugbe (2010) 4 NWLR (Pt. 1184) 265, per Ogbuinya, J.C.A. (Pp. 82-83,paras. F-D)
[37] See also Ajiboye v Ishola (2006) 13 NWLR (Pt. 998) 628.
[38] See Consolidated Appeal Nos. SC.14/2012, SC.14A/2012, SC.14B/2012 & SC.14C/2012.
[39] Ajiboye v Ishola (2006) All FWLR at 1235, per Ogbuagu, JSC).
[40] Consolidated Appeal Nos. SC.14/2012, SC.14A/2012, SC.14B/2012 & SC.14C/2012.
[41] (2008) All FWLR (Pt. 407) 1.
[42] Meaning where there is a wrong, there must be a remedy. It also means to do what the justice of the case deserves.
[43] Amaechi v INEC Supra at p. 111.
[44] UNIBIZ Nig. Ltd. v. C.B.C.L. Ltd. (2003) FWLR (Pt. 152) 71 at 92E-H.
[45] (1994) 7-8 SCNJ (Pt. I) 1 at 35.
[46] Federal Govt of Nig. v Olaolu [2011] All FWLR All (Pt.598) p. 977 at p.582.