Essential Constituents of a Judgement in Rem
The Appellant, who was the Village Head of Shangfu, and a certain Michael Lapang, the Village Head of Chun Village (both in Kwalla District of Qua’an Pan Local Government) contested for the vacant stool of District Head of Kwalla. At the election/selection process, the Appellant emerged the winner having pulled three (3) votes against the two (2) votes scored by Michael Lapang. Dissatisfied with the result aforesaid, Michael Lapang took out a Writ of Summons against the Appellant and the 1st to 5th Respondent, at the High Court of Plateau State. The trial Court found for Michael Lapang, who was the Claimant. In its judgement, the trial Court held contrary to the declaration made, that the selection was not in compliance with native law and custom governing the election of the District Head of Kwalla, as contained in the Regularisation Gazette No. 34 of 1982.
Following this judgement, the Appellant and 1st to 5th Respondent, appealed against the judgement, while Michael Lapang filed a Cross-appeal. However, before the appeals could be heard, Michael Lapang died. Consequently, the Appellants withdrew the appeal, and both the appeal and cross-appeal were struck out. Upon the striking out of the appeal, the 1st to 5th Respondent prepared to comply with the Order of the trial Court, to conduct fresh election to the stool of Kwalla District Head. The 6th Respondent petitioned against the continued stay of the Appellant in office as the District Head of Kwalla, in spite of the subsisting Order of Court to the contrary. While the preparation by the 1st to 5th Respondent for the conduct of fresh elections was ongoing, the Appellant took out an originating summons against the Respondents, raising four questions for determination. The Court determined the questions against the Appellant, necessitating the appeal to the Court of Appeal. The Appellate Court affirmed the decision of the trial Court; hence, a further appeal to the Supreme Court.
Issues for Determination 1. Whether the learned Justices of the Court of Appeal, were right to have found that the judgement of the Plateau State High Court is a judgement in rem which survived the death of Michael Lapang in whose favour judgement was given and who died during the pendency of the appeal against the said judgement at the Court of Appeal in Appeal No.CA/J/ 192/2006, and that the 1st to 5th Respondent can enforce the said judgement to suspend the Appellant for purposes of conducting fresh selection into the stool of District Head of Kwalla.
2. Whether going by the three final reliefs granted by the trial Judge in his judgement, the selection of the Appellant as the District Head of Kwalla on the 16th May, 2001 was nullified or declared to have been nullified, as held by the learned Justices of the Court of Appeal.
Arguments For the Appellant, Counsel submitted that, the legal consequence where the deceased did not prosecute the action in a representative capacity, is that the action and judgement obtained thereon, dies with him. He challenged the decision of the Court of Appeal, for failing to consider the nature of the action which is a chieftaincy dispute vis-à-vis the capacity in which Michael Lapang filed the action against the Appellant and the 1st to 5th Respondent. Counsel argued that, the Court of Appeal was misguided when it considered the entire reliefs of late Michael Lapang, in determining whether the judgement was in rem or in personam. He opined that, the decision of the Court of Appeal as to the nature of the judgement, should have been predicated on the three (3) reliefs granted by the trial Court, as against the six (6) reliefs claimed by Michael Lapang. Counsel argued that, the Order of the trial Court merely declared that the selection is contrary to Native Law and Custom, without more, and this does not affect the Appellant whose selection was not nullified, for there to be a fresh one. For him, the 1st to 5th Respondent ought to have initiated another proceeding, for the enforcement of the Order of the trial Court, relying on the case of IRAGBIJI v OYEWINLE (2003) 13 NWLR (Pt. 1372) 566 at 580.
The Attorney-General on behalf of the Respondents, contended that, the Court of Appeal rightly held that the judgement of the trial Court was in rem, and that the steps taken by the 1st to 5th Respondent to enforce the said judgement after the demise of Late Michael Lapang, was in order. He submitted further that, the selection of the Appellant as the District Head of Kwalla stands nullified, with the grant of the Order compelling the Appellant from parading himself as the District Head of Kwalla, and restraining the 1st to 5th Respondent from recognising and dealing with the Appellant as such. Counsel posited that, the Consequential Order was necessary and incidental to the decision of the Court, which is not at cross-purposes or contrary to its substance. Relying on the authority of OBA RASHEED AYOTUNDE OLABUNMI & ANOR. v OLABODE OYEWINLE & 2 ORS. (2013) 7 SCNJ 919 at 929, he argued that the judgement was executory, and not declaratory.
Court’s Judgement and Rationale Considering the two issues for determination together, learned Justices of the Supreme Court held on the nature of the judgement delivered by the trial Court, that the judgement is executory, and therefore, remains subsisting, and must be obeyed even if the person affected by it believes that it is void. The validity of such judgement rendered by a Court of competent jurisdiction, subsists and remains binding, until it is duly set aside on appeal and not by wishful thinking. GOMWALK v MILAD PLATEAU STATE (1998) 7 NWLR (Pt. 558) 413; BABATUNDE v OLAFINJI (2000) 2 SCNJ 26 at 33-34.
A judgment in rem, is one which determines the status of a person or a thing, as distinct from the particular interest of a party to the litigation. The judgement must affect the res in whichever way, such as by condemnation, forfeiture, per se, stops persons from averring the status of persons other than what the Court declares or made it to be. It is a judgement in rem, if it is contra-mundum binding on both parties, their agents, privies and even non- parties. It is an adjudication pronounced upon the status of a particular subject-matter by a Court or Tribunal, having the competence to adjudicate on such matter. IKENYI DIKE & ORS. v OBI NZEKA II & ORS. (1986) NWLR (Pt. 34) 144.
The judgement of the trial Court in this instance, satisfied the description of a judgement in rem not a judgment in personam. The Court had found for Michael Lapang, and determined the status of the District Headship of Kwalla at the material time. By the pronouncement that the election was contrary to the Native Law and Custom regulating the stool, and an Injunctive Order restraining the Appellant from parading himself as the District Head of Kwalla, the Court had touched on the position of the Appellant in this appeal. Though there was no specific claim for an Order to nullify the selection of the Appellant as District Head of Kwalla, however, in view of the finding that the selection process ran contrary to applicable procedure, the appropriate thing to do, was to consequentially nullify the selection notwithstanding that it was not specifically prayed for. A Court of law, has inherent powers to make Consequential Orders which flow directly and naturally from the decision or Order made on issues litigated upon, and inevitably consequent upon it. AKAPO v HABBEB-HABEEB (1992) NWLR (Pt. 247) 266. Such Orders are made in the interest of justice, and it is of no moment that, the particular Order was not specifically asked for by either party to the proceedings.
The decision appealed against, is the concurrent findings of the Courts below. The Supreme Court is always hesitant to upset/disturb such findings, except where there is manifest error resulting in miscarriage of justice, or a violation of some principle of substantive or procedural law, or where the decision has been shown to be perverse. The Appellant herein failed to satisfy the conditions for the intervention of the Supreme Court with the concurrent findings of facts of the trial Court and the Court of Appeal.
Appeal Dismissed.
Representation: E.O. Okjor with E.I. Ndidigwe; J.E. Esanubi; B.O. Anajeke and I.T. Egwuonwu for the Appellant.
J.A. Mawiydu – Hon. Attorney-General, Plateau State with N.D. Shasheet – Director, Citizen rights; J.D. Longdon – DDPP; N. Mbap – SSC; N.J. Agaba – SSC and S.F. Dalyop – SSC for the Respondents.
Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))
“A JUDGMENT IN REM, IS ONE WHICH DETERMINES THE STATUS OF A PERSON OR A THING....THE JUDGEMENT MUST AFFECT THE RES IN WHICHEVER WAY, SUCH AS BY CONDEMNATION, FORFEITURE, PER SE, STOPS PERSONS FROM AVERRING THE STATUS OF PERSONS, OTHER THAN WHAT THE COURT DECLARES OR MADE IT TO BE. IT IS A JUDGEMENT IN REM, IF IT IS CONTRA-MUNDUM BINDING ON BOTH PARTIES, THEIR AGENTS, PRIVIES AND EVEN NON-PARTIES”