CHIEF LAMIDI KOSOKO & ANOR v. ARIKE YEKINI TIAMIYU (2019)

CHIEF LAMIDI KOSOKO & ANOR v. ARIKE YEKINI TIAMIYU

(2019)LCN/13112(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of April, 2019

CA/L/171/2015

JUSTICE

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

1. CHIEF LAMIDI KOSOKO
2. CHIEF KAFARU AROWOLO
(For themselves and as representing the OLAROKUN family)Appellant(s)

AND

ARIKE YEKINI TIAMIYU
(Representing the YEKINI TIAMIYU family)Respondent(s)

RATIO

WHETHER OR NOT A COURT IS TO CONSIDER AND DETERMINE IF THE APPEAL IS SUSTAINABLE IN LAW

Even in such a situation, the law requires the Court to still consider and determine if the appeal is sustainable in law since the appeal is to succeed only on the strength and potency of the issues canvassed in accordance with established principles of law and not merely on the ground of the absence of Respondent’s brief. The Supreme Court in the case of ECHERE v EZERIKE (2000) ALL FWLR (323) 1597 at 1608, also reported in (2006) 12 NWLR (994) 386 had succinctly stated the position where a Respondent failed to file a brief of argument in an appeal. The Apex Court had said:
“A respondent who fails to file a respondent’s brief is deemed not to contest the appeal of the appellant and have therefore conceded the issues raised and argued in the appellant’s brief of argument. Yet the appeal must succeed or fail on the strength of the appellant’s case. It is not automatic that once a respondent fails to file his brief, the appellant automatically wins or succeeds in the appeal. See also: AKAS v MANAGER (2001) 8 NWLR (715) 436 at 442; EBE v EBE (2004) 3 NWLR (860) 215; FBN PLC v AKINYOSOYE (2005) 5 NWLR (918) 340; JOHN HOLT VENTURES v OPUTA (1996) 9 NWLR (470) 101.”
per GARBA, J.C.A (PP. 25-27, PARAS. F-B).
See also OGUOMA & ORS v COP IMO STATE & ORS (2018) LPELR 46252 (CA);
“I had earlier stated that none of the Respondents filed any brief in this Appeal. That, however, does not imply that Appellants’ arguments, beautiful as they may be, will succeed simply because the Respondents filed no Brief. I must state that I greatly commend the learned Counsel for the Appellants, Mrs. Oti-Onyema for the brilliant and insightful arguments of the brief. But by law, Appellants’ brief, though unchallenged, still has to be considered, fully, on its merits, in the light of the evidence and the law relating to the case. See the case of Onyenawuli v Onyenawuli & Anor (2017) LPELR-42662 (CA): “Failure of a party (respondent) to respond to an issue or even to the entire appeal, by filing a Respondent’s brief, to contest the appeal, does not make the issue or appeal of the Appellant, automatically, won, or a fait accompli, and unopposed. This is because; the Appellate Court still has a duty to consider the issue raised by the Appellant on the merits, in the light of the evidence adduced and the law.” See also Echere Vs Ezirike (2006) LPELR – 1000 SC, Umeh v Nwokedi (2016) LPELR – 41470 CA; Cameroon Airlines v Otutuizu (2011) LPELR – 827 SC.”
per MBABA, J.C.A ( PP. 23-24, PARA. F). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT CONTEMPT OF COURT IS AN OFFENCE SUI GENERIS

Again in FCDA & ANOR v KORI PAMO – AGARY (2010) LPELR – 4148 (CA) this Court held that-
“It is trite law that contempt of Court is an offence sui generis. An application for committal for any disobedience of an order of Court is a very serious matter as it involves in most cases an exceptional interference with the liberty of a subject and therefore when any antecedent process has to be put in motion, every prescribed step and rule however technical should be carefully taken, observed and insisted upon. Any irregularity in the procedure for committal is a fundamental vice which vitiates the entire application. Per Edozie J.C.A in Atser v. Gachi (1997) 6 NWLR (pt. 510) 609 at 624; Gordon v. Gordon (1946) 1 All E.R. 247 at 250; Boyo v. The State (1970) 1 All NLR 318 at 319-320; Okuosa v. Okwuosa (1973) 3 ECSLR (pt. 1) 75. “Since a proceeding to commit a person for contempt is a criminal or quasi-criminal proceeding, every procedural step – the legal modus proseqiandi must, ‘ex necessitate’, to be followed, strictly and be strictly complied with.” PER OBASEKI-ADEJUMO, J.C.A.

WHETHER OR NOT A COURT CAN ONLY BE COMPETENT IF ALL THE CONDITION PRECEDENTS TO ITS JURISDICTION ARE FULFILLED

A Court can only be competent if among other things all the conditions precedent to it’s jurisdiction are fulfilled. The service of process on the defendant so as to enable him appear to defend the relief being sought against him and the appearance of the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26. For emphasis, failure to serve process where service is required is a failure which goes to the root of jurisdiction of the Court. Any proceedings in such a case is a nullity and a party against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the order has not been fulfilled. Atser v. Gachi (1997) 6 NWLR (pt. 510) 609; Odita v. Okwudinma (1969) 1 All NLR 228; Union Beverages Ltd. v. Adamite (1990) 7 NWLR (pt. 162) 348; Scott Emuakpor v. Ukarba (1975) 12 SC 41. The mere fact that a Court is dealing summarily with contempt does not imply that the principles of fair hearing are to be compromised. Atser v. Gachi (1997) 6 NWLR (pt.510) 609 at 629 – 630; Boyo v. Attorney General Mid-Western State (1971) 1 All NLR 342……. A person restrained by a Court from doing any particular act or thing must be duly and properly informed or served with the Court order restraining him before he could be made criminally liable for a breach of such order. Contempt being a criminal charge, the burden of proving it is on the applicant and he must prove all the ingredients in the allegation beyond reasonable doubt. It follows therefore that when the respondent was restrained in his absence by the injunctive order of the High Court, the draw up order duly signed and sealed by the appropriate official of the Court should be served on the respondent who was expected to be authorised by the order. Such service must be in the form duly authorized by the Court and anything short of the strict compliance with the procedure would vitiate any such application for committal. Bonnie v. Gold (1996) 8 NWLR (pt.465) 230 at 237; Okoya v. Santilli (1991) 7 NWLR (pt. 206) 753; Agbachom v. State (1970) 1 All NLR 69; Awobokun v. Adeyemi (1970) NMLR 289; Onagoruwa v. Adeniji (1993) 5 NWLR (pt. 193) 319.”
per PETER-ODILI, J.C.A ( PP. 21-27, PARA. C). PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Lagos State contained in the ruling of the Honourable Justice O. O. FEMI ADENIYI J of the Lagos State High Court, dated the 17th day of February, 2015, whereby the Court refused to adjourn the suit pending the hearing and determination of the appeal despite being informed in open Court that an appeal has been entered at the Court of Appeal as appeal No: CA/L/881/2011.

The matter was commenced by Originating summons which was later converted to Writs of Summons, wherein the Respondent claimed against the Appellants inter alia:
an Order for damages for trespass over a parcel of land lying and being at Owode Street, off Progress College Road, New Oko-Oba, Agege and more particularly described and delineated in Plan no. AP/2894 dated 5/1/1981.

The Appellants/Defendant by a Motion on Notice challenged the competence of a committal proceeding which the Respondents had sought to initiate against them on the ground amongst others that they were neither served with Form 48 nor

Forms 49. The lower Court delivered ruling in the motion and dismissed same on the 8th day of June, 2011.

The Appellants by a Notice of Appeal dated the 21st day of June, 2011 challenged the decision of the lower Court delivered on the 8th day of June, 2011.

The Appellant filed and obtained an order from this Court on the 6th June, 2017 for this appeal to be heard on the Appellants brief alone, the Respondent was served with the hearing notice on 6/3/19 and the Respondent was not represented by counsel nor in person neither was there any reasons for their absence provided, the Court therefore deemed their absence as not interested in the appeal.

This appeal would be heard and determined only on the Appellants Brief of Argument. The fact that there is no respondents brief does not automatically make it an admitted appeal it would still be determined on its merit, in OKONKWO v FRN & ANOR (2011) LPELR – 4723 (CA), this Court held on the question of whether failure of the respondent to file brief of argument will make the appeal of the appellant to succeed thus;

“Because the appeal was heard on the Appellant’s brief alone and since the Respondents did not file brief of argument to respond to the issue and points canvassed in the Appellant’s brief, only the submissions by the Appellant are available for consideration in the determination of the appeal. In that regard, the Appellant’s appeal is uncontested in the absence of a brief of argument from the Respondents to the appeal who in law are deemed to have conceded to the appeal.”
See: SALAU v PARA-KOYI (2001) 13 NWLR (731) 602, UGBOAJA v SOWEMIMO (2008) 10 MJSC, 105; SHONA-JASON v OMEGA AIR (2006) 1 NWLR (960) 1 at 27. However, the law in its wisdom is that the fact that a Respondent had opted not to contest an appeal by failure, neglect or deliberate decision not to file a Respondents’ brief does not translate to an automatic success of the appeal for the Appellant. Even in such a situation, the law requires the Court to still consider and determine if the appeal is sustainable in law since the appeal is to succeed only on the strength and potency of the issues canvassed in accordance with established principles of law and not merely on the ground of the absence of Respondent’s brief. The Supreme Court in the

case of ECHERE v EZERIKE (2000) ALL FWLR (323) 1597 at 1608, also reported in (2006) 12 NWLR (994) 386 had succinctly stated the position where a Respondent failed to file a brief of argument in an appeal. The Apex Court had said:
“A respondent who fails to file a respondent’s brief is deemed not to contest the appeal of the appellant and have therefore conceded the issues raised and argued in the appellant’s brief of argument. Yet the appeal must succeed or fail on the strength of the appellant’s case. It is not automatic that once a respondent fails to file his brief, the appellant automatically wins or succeeds in the appeal. See also: AKAS v MANAGER (2001) 8 NWLR (715) 436 at 442; EBE v EBE (2004) 3 NWLR (860) 215; FBN PLC v AKINYOSOYE (2005) 5 NWLR (918) 340; JOHN HOLT VENTURES v OPUTA (1996) 9 NWLR (470) 101.”
per GARBA, J.C.A (PP. 25-27, PARAS. F-B).
See also OGUOMA & ORS v COP IMO STATE & ORS (2018) LPELR 46252 (CA);
“I had earlier stated that none of the Respondents filed any brief in this Appeal. That, however, does not imply that Appellants’ arguments, beautiful as they may be, will succeed simply because the

Respondents filed no Brief. I must state that I greatly commend the learned Counsel for the Appellants, Mrs. Oti-Onyema for the brilliant and insightful arguments of the brief. But by law, Appellants’ brief, though unchallenged, still has to be considered, fully, on its merits, in the light of the evidence and the law relating to the case. See the case of Onyenawuli v Onyenawuli & Anor (2017) LPELR-42662 (CA): “Failure of a party (respondent) to respond to an issue or even to the entire appeal, by filing a Respondent’s brief, to contest the appeal, does not make the issue or appeal of the Appellant, automatically, won, or a fait accompli, and unopposed. This is because; the Appellate Court still has a duty to consider the issue raised by the Appellant on the merits, in the light of the evidence adduced and the law.” See also Echere Vs Ezirike (2006) LPELR – 1000 SC, Umeh v Nwokedi (2016) LPELR – 41470 CA; Cameroon Airlines v Otutuizu (2011) LPELR – 827 SC.”
per MBABA, J.C.A ( PP. 23-24, PARA. F)

The crux of this appeal is that, the Appellants deemed it proper to inform the trial Court that their appeal against the decision made the 8th day of

June, 2011 has been entered at the Court of Appeal, Lagos hence they filed an affidavit of Notice of pending Appeal dated 10th December, 2014.

The Lower Court overruled the submission of the Appellants counsel and adjourned the suit for further proceedings and/or hearing of pending applications. Hence, the Appellants lodged an appeal against the same by a Notice of Appeal dated the 2nd of March 2015.

The parties as is customary in this Court, parties exchanged briefs; The Appellants brief was filed on 18/3/15 by Okechukwu Tagboo Dike of OLATUNDE ADEJUYIGBE & CO wherein he submitted a sole issue for determination in this appeal thus;
Whether the learned trial judge was right when he adjourned the suit for further proceedings and/or hearing of pending application after the Appeal against its earlier decision has been entered at the Court of Appeal as APPEAL NO: CA/L/881/2011.

APPELLANT SUBMISSION
The Appellants submitted that from the provisions of Order 4 Rule 11 of the Court of Appeal Rules, 2011, the jurisdiction of a trial Court in respect of a matter is frozen until the appeal is disposed of. He relied on MOHAMMED v HUSSEINI

(1998) 14 NWLR (PT. 584) 108 at 141; MOBIL OIL (NIG) v AGADAIGHO (1988) 1 NSCC VOL. 19 (PT. 1) 777 at 794; SPDCN LTD v AMADI (2011) 14 NWLR (PT. 1266) 157 at 193, in buttressing the effect of an appeal having been entered in Court of Appeal, that, the Court of Appeal is seised of the entire proceedings.

The Appellants counsel contended that there was no committal proceedings held or order made committing the Appellants to prison. And the appeal was not against the committal order but against an earlier decision of the lower Court, he relied on AGU v ANYALOGU (2002) 14 NWLR (PT. 787) 294; AMOO v ALABI (2003) 12 NWLR (835) at 555; DINGYADI v INEC (2011) 10 NWLR (PT. 1255) 347 at 395. Appellants submitted that the lower Court acted without jurisdiction and with total disregard of the law, when, it adjourned for further proceedings.

The Appellants further argued that the trial Court was bound to apply the doctrine of stare decisis, whether or not it agreed with it or not, he relied on the cases of AMAECHI v INEC (2008) 5 NWLR (PT. 1080) 277 at 379 and DALHATU v TURAKI (2003) 15 NWLR (PT. 843) 310 at 350.

RESOLUTION
I have critically read the Appellants brief of argument and the records. The Appellant only raised one issue for determination;
Whether the learned trial judge was right when he adjourned the suit for further proceedings and/or hearing of pending application after the Appeal against its earlier decision has been entered at the Court of Appeal as APPEAL NO: CA/L/881/2011.

The crux of the matter is the effect of an appeal when it is entered. The Appellants notice of appeal at page 31 of the record was filed on 2/3/15 on one ground of appeal and it is clearly against the ruling of the trial Court on the 17th February, 2015, to proceed with hearing of pending applications in the trial.

The Appellants had filed a notice of appeal against the order of the Court on 21/46/11 at page 9 of the record of appeal holding that the parties have been served with forms 48 & 49 and accordingly struck out the applicants/defendants application with N10,000 cost.

At page 14 is a copy of the affidavit of notice of pending appeal filed by the Appellants in the lower Court and paragraphs 3-8 thereof are depositions by Omo-Elo Jomaru Akokaike a legal practitioner to

the effect that the appeal filed against the Courts ruling on 8/6/11 has been entered and gave the appeal number as CA/L/881/2011 and date as 19/9/11, furthermore, the record has been filed in the Court of appeal and an acknowledged copy of same was attached as Exhibit AG1 all to bring to the Courts attention of the events which may affect the proceedings in Court. See page 16-17 of records.

The reaction of the lower Court is at page 28 the Court proceedings of 17th February, 2015 and ruling thereof where the Court held that the appeal does not affect the substantive matter before the Court.
What exactly is the issue before the appeal? I find that the lower Court had ruled that the notices leading to contempt proceedings had been served on the defendants who contended by application the contrary; the next step is for the hearing of the contempt proceedings. The substantive suit herein is for trespass of land.
This Court in CHUKWU & ORS v CHUKWU & ORS (2016) LPELR 40553 (CA) on Requirement of personal service of processes in a committal proceeding and effect of failure to comply with the requirement held thus;

“To make matters worse, the Respondents in this case were not served with the alleged Forms, as required by law, which insists on personal service of the contempt proceedings. See FCDA v. Koripamo-Agary (supra) “The notice of motion and affidavit and grounds for committal for contempt committed ex-facie Curiae must be served personally on the person sought to be committed, provided that the Court may dispense with personal service where the justice of the case demands it…” In that case of Anozia Onowu v. Ogboko (supra) it was further held: “Appellant being a lawyer of many years standing should have known that the order for substituted service of the “writ of summons and other processes on the case… did not extend to and could not have covered contempt proceedings, a completely new process of quasi criminal nature, which alleged disobedience to Court order and threatened the Respondents with imprisonment. They needed to be personally served with the alleged contempt and afforded the opportunity to defend themselves.”

per MBABA, J.C.A ( PP. 109-110, PARAS. C-B)

By Order 41 Rule 2 (2) of the High Court Rules 1987 applicable in Kwara State the notice of motion and affidavit and grounds for committal for contempt committed ex faciae curiae must be served personally on the person sought to be committed, provided that the Court may dispense with personal service where the justice of the case demands it, which is not the case where there was no application for substituted service. Military Governor of Kwara State v. Afolabi (1991) 6 NWLR (pt.196) 212 at 227. Service of the relevant process on the clerks of the alleged contemnors would not constitute due process under the Rules of Court and so the condition precedent to the initiation of the proceedings and exercise of jurisdiction would not have been met and the result is fatal to the proceedings which are thereby rendered null and void. Military Governor of Kwara State v. Afolabi (1991) 6 NWLR (pt.196) 212 at 227; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult v. Ukey (1981) 1 SC 6; Atser v. Gachi (1997) 6 NWLR (pt. 510) 609. A Court can only be competent if among other things all the conditions precedent to it’s jurisdiction

are fulfilled. The service of process on the defendant so as to enable him appear to defend the relief being sought against him and the appearance of the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26. For emphasis, failure to serve process where service is required is a failure which goes to the root of jurisdiction of the Court. Any proceedings in such a case is a nullity and a party against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the order has not been fulfilled. Atser v. Gachi (1997) 6 NWLR (pt. 510) 609; Odita v. Okwudinma (1969) 1 All NLR 228; Union Beverages Ltd. v. Adamite (1990) 7 NWLR (pt. 162) 348; Scott Emuakpor v. Ukarba (1975) 12 SC 41. The mere fact that a Court is dealing summarily with contempt does not imply that the principles of fair hearing are to be compromised. Atser v. Gachi (1997) 6 NWLR (pt.510) 609 at 629 – 630; Boyo v. Attorney General Mid-Western State (1971) 1 All NLR 342……. A person restrained by a Court from doing any

particular act or thing must be duly and properly informed or served with the Court order restraining him before he could be made criminally liable for a breach of such order. Contempt being a criminal charge, the burden of proving it is on the applicant and he must prove all the ingredients in the allegation beyond reasonable doubt. It follows therefore that when the respondent was restrained in his absence by the injunctive order of the High Court, the draw up order duly signed and sealed by the appropriate official of the Court should be served on the respondent who was expected to be authorised by the order. Such service must be in the form duly authorized by the Court and anything short of the strict compliance with the procedure would vitiate any such application for committal. Bonnie v. Gold (1996) 8 NWLR (pt.465) 230 at 237; Okoya v. Santilli (1991) 7 NWLR (pt. 206) 753; Agbachom v. State (1970) 1 All NLR 69; Awobokun v. Adeyemi (1970) NMLR 289; Onagoruwa v. Adeniji (1993) 5 NWLR (pt. 193) 319.”
per PETER-ODILI, J.C.A ( PP. 21-27, PARA. C)
Therefore, this step is very important and any irregularity affects the jurisdiction of the Court, once

the contempt begins, it must be concluded to a logical end. The substantive matter had not commenced, there were several applications to be sorted out. I am of the firm view that having heard that the appeal had been entered the contempt proceedings must be stayed as it involves deprivation of liberty. While the main case may proceed but the Court in its ruling failed to acknowledge that fact and made it clear but mopped it all together and adjourned the matter in so doing it did not separate the matters apart even when the lower Court mentioned in the ruling that;
I agree with the counsel to the Claimant that an appeal against an order of committal does not touch on the res of the substantive matter.
The application to adjourn the suit pending the determination of the appeal on committal order is refused.
In BARIGHA v PDP & ORS (2012) LPELR -19712 (SC), the apex Court held;
“An appeal is filed or brought as soon as the notice of appeal is filed at the Court below/trial Court as the case may be. See: Shodeinde v. Registered Trustees of Ahmadiyya Movement (2001) FWLR (Pt.58) 1065. This means that an appeal is deemed

to have been brought when the notice of appeal has been filed at the registry of the Court below or leave to appeal has been granted and before this Court has become seised of the whole proceedings. At this stage, both this Court and the Court below have concurrent jurisdiction to deal with interlocutory applications. However, the Rules of this Court require that such application should be made at the Court below in the first place for adjudication and ruling. An appeal is said to be entered in this Court, on the other hand, when the Record of Appeal has been transmitted to this Court and entered on the cause list. It is at this point in time when the Court below will cease to have jurisdiction to hear any application. After an appeal has been entered, all other applications can only be made to this Court though applications may be filed in the Court below for proper transmission to this Court. This is because once this Court is seised of the appeal, it has the sole jurisdiction to deal with the matter interlocutory or otherwise. See generally: Coker v. Adeyemo (1965) All NLR 125 at pp 128 – 129; Erisi v. Idika (1987) 4 NWLR (Pt.66) 503; Lazard Brothens & Co. v. Midland Bank Ltd. (1933) AC 289.”

Per MUHAMMAD, J.S.C ( Pp. 28-29, Paras. B-D)
As at the date of the application the Court rules was the 2011 which in effect mandated that;
after an appeal has been entered and until disposed of the Court shall be seized of the whole of the proceedings as between parties thereto…
Therefore, the lower Court erred in not separating the affected proceedings from the substantive matter especially in these days of case management and timeous adjudication.
The cases cited by counsel are apt in the circumstances.

In the light of the above, the appeal is allowed and succeeds, the ruling of FEMI-ADENIYI, J of the Lagos State High Court is set aside and the contempt proceedings in this matter is stayed pending the determination of the appeal. The substantive matter which is land shall be referred to the chief judge of Lagos State for reassignment and be accorded accelerated hearing to another judge other than FEMI-ADENIYI, J.
There shall be no order as to cost.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., which I had the benefit of reading in print.

TIJJANI ABUBAKAR, J.C.A.: I read before now the lucid leading Judgment delivered in this appeal by my Lord and learned brother Obaseki-Adejumo JCA. I am in full agreement and adopt the entire Judgment as my own. I have nothing extra to add.

Appearances:

Okechukwu Tagboo-Dike with him, Yetunde OgunsanwoFor Appellant(s)

Respondent not representedFor Respondent(s)

Appearances

Okechukwu Tagboo-Dike with him, Yetunde OgunsanwoFor Appellant

AND

Respondent not representedFor Respondent