CHAKA v. BABA (2020)

CHAKA v. BABA

(2020)LCN/14140(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, April 22, 2020

CA/YL/213/2019

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

ALIYU CHAKA APPELANT(S)

And

MUTAA BABA RESPONDENT(S)

RATIO

WHAT IS AN APPEAL?

An appeal is an invitation to a higher Court to look at the decision of a lower Court in order to determine whether on the facts before it and the applicable law, the lower Court arrived at a correct decision.The invitation is by grounds of appeal which consist of the error of law or fact alleged by an Appellant as the defect in the judgment appealed against and relied upon to have the judgment set aside. The grounds of appeal must be framed in such a way as to attack the judgment of a Court on the issue decided by it. See the decisions of the Supreme Court in Oredoyin Vs. Arowolo (1989) 4 NWLR (Pt. 114) 172 and Metal Construction (W. A.) Ltd Vs. Migliore (1990) 1 NWLR (Pt. 126) 299 and the decision of this Court in Ngige Vs. Obi (2000) 14 NWLR (Pt. 999) 1. PER ABIRIYI, J.C.A.

FAILURE TO GIVE NOTICE OF PROCEEDINGS TO THE OPPOSING PARTY

Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the Court has no jurisdiction to entertain it. See Mark Vs. Eke (2004) 5 NWLR (Pt. 865) 54 and Wema Bank Nigeria Ltd Vs. Odulaja (2000) 3 SC 83.
Where at the time of issuance of Court Process personal service could not in Law be effected on the opposing party, the Plaintiff/Appellant should apply by motion ex parte for substituted service. The application shall be supported by an affidavit stating the grounds upon which the application is brought as well as the form of substituted service which is proposed. The abortive efforts made at personal service should be deposed to as well as the reasons for the form of substituted service proposed. If the reason for the application is evasion of service by the opposing party, a mere statement to this effect is not enough. The grounds for the statement must be given. See the decision of this Court in Ononye Vs. Chukwuma (2005) 17 NWLR (Pt. 953) 90 and Order 6 Rule 4 (2) of the Adamawa State High Court (Civil Procedure) Rules 2013. PER ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 5th November, 2018 in the High Court of Adamawa State holden at Yola. The matter was heard in the High Court (the Court below) on appeal from Hildi Area Court (the trial Court) where the Appellant claimed title to the land in dispute. The trial Court entered judgment in favour of the Appellant. The Respondent who was the Defendant in the trial Court appealed to the Court below. The Court below allowed the appeal of the Respondent, set aside the judgment of the trial Court and ordered for a re-trial before Upper Area Court 1, Mubi as prayed for by the Respondent. On 24th September 2019, this Court granted the appellant leave to appeal against the judgment of the Court below.

The appellant filed the notice of appeal on 27th September, 2019. The notice of appeal contains seven grounds of appeal. From the seven grounds of appeal, the Appellant presented the following four issues for determination:
1. Whether the Respondent who was not a party to this case at the trial Court can appeal against the judgment of the trial Court to the lower Court without

first obtaining the leave of the trial Court or that of the lower Court and whether the lower Court has the requite jurisdiction to entertain the appeal. (Distilled from ground five of the grounds of appeal).
2. Whether the Appellant was denied his right to fair hearing by the lower Court when he was not given notice of the appeal against him at the lower Court to enable him defends (sic) the appeal and whether the failure to serve the Appellant with the appeal divested the lower Court of jurisdiction to entertain the appeal.(Distilled from ground (sic) one and three of the grounds of appeal).
3. Whether the Respondent or the Defendant at the trial Area Court was denied the right to fair hearing and whether the lower Court was right when it upheld the affidavit challenging the record of proceedings of the trial Area Court. (Distilled from ground two and six of the grounds of appeal).
4. Whether the judgment of the lower Court is perverse and same occasioned a miscarriage of justice.(Distilled from ground four of the grounds of appeal).

The Respondent on the other hand submitted the following three issues for determination:

Whether the typographical error that affected only a single alphabet spelling of the Respondent (sic) second name can warrant the judgment of the lower Court to be set aside.
2. Whether the Appellant was not accorded fear hearing at the Lower Court.
3. Whether the Appellant is entitle (sic) to the reliefs sought given the nature of the Appeal.

I will determine the appeal on the issues presented for determination by the Appellant.

Arguing the appeal, the learned Counsel for the appellant contended on issue 1 that the Respondent (Muta’a Baba) filed the notice of appeal in the Court below even though he was not a party to the case at the trial Court.

On issue 2, learned Counsel for the Appellant submitted that the Appellant was not served with the notice of appeal and other processes to enable him appear in the appeal. Rather the Court below, it was submitted, relied on evidence of Respondent’s counsel to grant an oral application for substituted service. This it was submitted, was contrary to Order 6 Rule 4 (2) of the Adamawa State High Court (Civil Procedure) Rules 2013. The oral application by Respondent’s counsel for substituted

service in this case, it was submitted, was not supported by an affidavit and grounds for bringing the application. Therefore the Court below erred when it granted the oral application for substituted service, it was submitted.

It was further submitted that no affidavit was deposed to by the bailiff to show that service was attempted and it failed.

It was submitted that the Court below erred when it proceeded to hear the appeal when the appellant before this Court was not served with the processes in the appeal to enable him defend the appeal. The Court was referred to Idisi Vs. Ecodril (Nig) Ltd (2016) All FWLR (Pt. 850) 1016 – 1023 and Aluko Vs. Ogungbemi (2008) All FWLR (Pt. 379) 179 at 182.

It was submitted that the failure to serve the Appellant with the notice of appeal and other processes robbed the Court of jurisdiction to entertain the appeal.

On issue 3, the Court was referred to page 21 of the record where the Respondent after calling four witnesses in defence and proof of the counterclaim said she closed her case and did not testify. So her evidence could not be in the record and she could not complain that she was denied

fair hearing

On the complaint that the trial Court failed to make a pronouncement on the Respondent’s counterclaim, learned Counsel for the Appellant pointed out that the Court below was reviewing the proceedings of an Area Court and ought to determine the appeal without undue regards to technicalities. The Court was referred to Section 58 of the Area Courts Edict Cap. II Laws of Adamawa State 1997 andJitte Vs. Okpulor (2016) All FWLR (Pt. 820) 1371 at 1383 – 1374. It was submitted that Area Courts are focused on substantial justice and in this case the trial Court reached a sound decision which ought to have been upheld by the Court below.

It was pointed out that the Respondent was the Appellant in the Court below and could not turn round and challenge the record she herself compiled.

It was submitted that there was nothing on the printed record of proceedings of the trial Area Court to fault what happened in the trial Court.

On issue 4, learned Counsel for the appellant maintained that the Respondent was not a party to the case at the trial Court and could not have appealed to the Court below without obtaining leave to appeal

as an interested party. Arguments on want of service of processes were repeated on issue 4.

The learned Counsel for the Respondent contended that the second name of the Respondent was erroneously typed as Baba instead of Buba.
He submitted that this did not cause any miscarriage of justice to the Appellant.

On the alleged non service of the notice of appeal and other processes on the Appellant, learned Counsel for the Respondent argued that an enabling environment was created for the parties to be heard and the Appellant failed to take advantage of it. That the Court below was satisfied that there was service on the Appellant.

The reply brief of Argument did not deal with any new point arising from the Respondent’s brief as required by the Order 19 Rule 5 (1) of the Court of Appeal Rules 2016 but a re-argument of the appeal. I will therefore discountenance the reply brief.
I will determine issue one separately and issues 2 and 4 together, then issue 3 separately if need be.

An appeal is an invitation to a higher Court to look at the decision of a lower Court in order to determine whether on the facts before it and the

applicable law, the lower Court arrived at a correct decision.The invitation is by grounds of appeal which consist of the error of law or fact alleged by an Appellant as the defect in the judgment appealed against and relied upon to have the judgment set aside. The grounds of appeal must be framed in such a way as to attack the judgment of a Court on the issue decided by it. See the decisions of the Supreme Court in Oredoyin Vs. Arowolo (1989) 4 NWLR (Pt. 114) 172 and Metal Construction (W. A.) Ltd Vs. Migliore (1990) 1 NWLR (Pt. 126) 299 and the decision of this Court in Ngige Vs. Obi (2000) 14 NWLR (Pt. 999) 1. Ground 5 from which issue 1 was formulated is not an attack on the judgment of the Court below. It is not an attack on error of law or fact in the judgment of the Court below. Whether the Respondent was a party to the case at the trial Court was never an issue in the Court below. The Appellant did not seek leave to raise a fresh issue before this Court and no such leave was granted to him. Ground 5 and issue 1 on which learned Counsel for the Appellant made heavy weather should be discountenanced. In case, I am wrong, I will still consider issue 1 on the

merit.

The simple issue on which the Appellant has sought to make heavy weather of is whether the Respondent who was referred to in some of the documents in the Court below as Muta’a Baba is the same person referred as Muta’a Buba in the trial Court. Learned counsel for the Appellant has contended forcefully that they are two different people. Learned Counsel for the Respondent submitted that it is the same person referred to both as Muta’a Buba in the trial Court and Muta’a Baba in the Court below and in this Court. I have no difficulty in agreeing with learned Counsel for the Respondent. See the judgment of the trial Court at page 26 or page 22 of the record where the trial Court in the opening sentence said:
“This is a civil file (sic) by Aliyu Chaka of Gashala Kufan against the Defendant Muta’a Buba of the same address and the land is situated at Dagula Biadu.”

The judgment was delivered on 3rd May 2018. The notice of appeal against that judgment to the Court below in part reads as follow:
“This (sic) to give Notice of Appeal against the decision of Hildi Area Court delivered on 3/5/2018

…………………………………
1. Name of parties – Aliyu Chaka
Vs.
Muta’aBuba.”

The affidavit at page 33 of the record filed in the Court below has Muta’aBuba as the Appellant.

It is clear from the foregoing that the Respondent was a party in the Court below. Baba instead of Buba was introduced by the learned Counsel for the Respondent who filed the notice of appeal on behalf of the Respondent. See the names of the parties at the top of the Notice of Appeal. See also “Appellant (sic) Final Written Address In Support Of Appeal” at page 36 of the record filed by learned Counsel for the Respondent. Learned Counsel for the Respondent who introduced Baba for Buba has contended that it was a typographical error. With due respect to learned Counsel, it was carelessness on his part or something more serious that is why he has perpetuated the error which he introduced in the notice of appeal, the written address filed by him in the Court below and even the Respondent’s brief before us without showing that the Respondent has had a change of name. This type of carelessness must be deprecated.

The carelessness on the part of learned Counsel for the Respondent exhibited by perpetuating the error in the second name of the Respondent was however no licence for the Appellant’s counsel to play to the gallery and seek to waste the time of the Court by arguing without any basis that Respondent was not a party to the appeal in the Court below when in fact she was the Appellant.
In the circumstances, I resolve issue 1 against the Appellant and in favour of the Respondent.

proposed. The abortive efforts made at personal service should be deposed to as well as the reasons for the form of substituted service proposed. If the reason for the application is evasion of service by the opposing party, a mere statement to this effect is not enough. The grounds for the statement must be given. See the decision of this Court in Ononye Vs. Chukwuma (2005) 17 NWLR (Pt. 953) 90 and Order 6 Rule 4 (2) of the Adamawa State High Court (Civil Procedure) Rules 2013.
In the instant matter, learned Counsel for the Respondent applied orally for an order for substituted service of the processes in the appeal by pasting at the residence of the Appellant and the Court below granted the application. Undoubtedly this was not in compliance with Order 6 Rule 4 (2) of the Adamawa State High Court (Civil Procedure) Rules 2013. There was no affidavit in support of the application stating the grounds upon which service by substituted means was sought etc. At the next adjourned date of the appeal, learned Counsel for the Respondent claimed that the order for substituted service had been complied with. There was no affidavit of service of the Court processes sworn to

by the bailiff. The mere assertion by Respondent’s Counsel that the order of the Court had been complied with was not evidence of service of the Court processes. The Respondent’s counsel was granted an adjournment to enable him file a written address. On the 1st November, 2018 when he argued the appeal, there was no evidence that the written address was served on the Appellant. Both counsel and the Court were silent on whether the written address had been served on the Appellant. This means that the written address of the Respondent was not served on the Appellant. After he had argued the appeal, learned Counsel for the Respondent again claimed that the Judge of the trial Court was served with the affidavit challenging the correctness of the record of proceedings of the trial Court. Again there was no evidence of such service. Therefore the Court below erred when it relied on the mere assertions after the appeal had been argued by learned Counsel for the Respondent that the trial Judge had been served through the Registrar of that Court with the affidavit challenging the record of the trial Court. There was no affidavit of service sworn to by the bailiff

showing that that affidavit had been served either on the Appellant or the trial Judge and the Registrar of the trial Court. Therefore the Court below had no jurisdiction to rely on that affidavit to find that the Respondent’s testimony at the trial Court was not recorded in the record of proceedings.
It is very clear from the foregoing that the Court below heard the appeal before it when there was no evidence that the Appellant had been served with any of the processes including the notice of appeal and this was without jurisdiction.

In the circumstances, issues 2 and 4 are resolved in favour of the Appellant and against the Respondent.
The appeal having been heard and determined without jurisdiction no useful purpose will be served considering issue 3 which deals with the merit of the appeal particularly in view of the orders I am going to make.
Issue 1 having been resolved in favour of the Respondent the appeal succeeds in part.

The proceedings and judgment of the Court below having been determined without jurisdiction are hereby set aside.
The appeal of the Respondent against the judgment of the Area Court Hildi in Appeal

No. ADSM/48A/2018 is hereby remitted back to The Hon. Chief Judge of Adamawa State for re-assignment to another Judge other than Danladi Mohammed J for hearing de novo.
Appellant is awarded N100,000.00 costs which shall be paid by the Respondent.

CHIDI NWAOMA UWA, J.C.A.: I heard the privilege of reading in advance the draft copy of the judgment just delivered by my learned brother, JAMES SHEHU ABIRIYI, JCA. I agree with the decision that Appeal No: ADSM/40A/18 be remitted back to the Chief Judge of Adamawa State for trial de novo by another judge other than Mohammed, J. of the Adamawa State High Court. I abide by the order made as to costs in the leading judgment.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

M. Agav For Appellant(s)

Respondent not in Court though served through learned Counsel Caleb K. Atiman. For Respondent(s)