LEGAL NUGGETS (22):SETTING ASIDE JUDGMENT/ORDER.By Adedotun Habeeb Adetunji LL.M (M.IoD), FCAI.

UTUK V OFFICIAL LIQUIDATOR & ANOR (2008) LPELR- 4323 (CA)

ISSUE: JUDGMENT AND ORDER - SETTING ASIDE JUDGMENT/ORDER- Whether a judge has the power to set aside the judgment or order of another judge of coordinate jurisdiction

PRINCIPLE:
 "To begin with there is a general proposition that in the absence of any legislation a Judge cannot sit on appeal or the judgment of another judge of concurrent or co-ordinate jurisdiction. There are a plethora of cases dealing with the issue. In the case of Onwuka vs. Maduka (supra) at page 354 - 355, this Court held that: "Where it is intended that a particular act of one Judge or Court could be set aside by himself or another Judge of concurrent jurisdiction such rules ordinarily expressly provide for them.

Therefore, in the absence of express provision granting power to the Court of Judge or another Court of concurrent jurisdiction to set aside or vary its own orders, the remedy open to the appellant in the instant case was to go on appeal to the Court of Appeal against the exercise of discretion by Ikeazor, in his ruling adding the 2nd, 8th respondents to the suit." In Akporue & Ors VS. Okei & Ors. (supra) the Supreme Court per Dan Ibekwe, JSC, held thus: "The trial Judge has no power to set aside the order or representation made by another Judge of the High Court and the defendants, if dissatisfied with the order as indeed they were, should have appealed against the order of representation, ..." See also Orewere & Ors. vs. Abiegbe & Ors. (1973) 8 NSCC 479 per Elias, CJN. In Agbenghen vs.Wagheroghor (supra) at page 120 at 23, Elias, CJN., held this: "We have had occasion in recent months to warn High Court Judges against the practice of sitting on appeal, as it here upon the judgments of the High Court Judges and to review and pass upon such judgments." It is crystal clear from the above decided cases that a Court of co-ordinate jurisdiction does not have the jurisdiction to set aside the judgment or ruling or order of another Court of co-ordinate jurisdiction.

See further Amannuba vs. Okafor (1966) 1 All NLR 205 at 207 and Uku & Ors. vs. Okumagba (1974) All NLR (Pt. 1) 475. It is important that I mention that the position of the law stated above is not sacrosanct. It admits of a very important exception and that is where a judgment or ruling or any decision of a concurrent or co-ordinate jurisdiction is a nullity.

It could be varied or even set aside by another Court or Judge of co-ordinate or concurrent jurisdiction. See Skenconsult vs. Sekondy Ukey, (1981) 1 SC 6 and Olu Onagoruwa vs. L G. P. (1991) 5 NWLR (Pt. 193) 638 at 639. Thus a Judge of co-ordinate or concurrent jurisdiction can set aside the decision of his brother Judge where: (a) the said judgment is ab initio void. (b)when the order is a nullity it can be set aside ex debito justicie. See Koden vs. Shido (supra), and Onagoruwa V. I. G. P. (supra)." Per OMOKRI ,J.C.A ( Pp. 13-16, paras. E-A )