MOMOH v. PRICE WATER HOUSE (2020)

MOMOH v. PRICE WATER HOUSE

(2020)LCN/14416(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/L/254/09(R)

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

JOHN MOMOH APPELANT(S)

And

PRICE WATER HOUSE (SUED AS A FIRM) RESPONDENT(S)

RATIO

WHETHER OR NOT AN AFFIDAVIT OF SERVICE SWORN BY BAILIFF OR OTHER OFFICERS OF THE COURT IS PRIMA FACIE PROOF OF SERVICE ON A PARTY

The learned Appellant/respondent’s counsel has stated the correct position of the law that an affidavit of service sworn by bailiff or other officers of the Court is a prima facie proof of service on a party. See West African Oilfield Services Ltd V. Gregory (2019) LPELR-47292, per Ikyegh JCA relying on the Apex Court’s decision in Emeka V. Okoroafor & Ors. (2017) 11 NWLR (pt. 1577) 410 or (2017) LPELR-41738 (as cited by the learned Appellant’s counsel) held that the affidavit of service filed by the bailiff of Court has the protection of regularity as an official act under Section 168 (1) of the Evidence Act 2011. It is only when the party denying such service filed a counter affidavit showing specific facts and not just a bare denial, that the presumption of regularity is rebutted. See alsoMgbenwelu V. Olumba (supra) relied upon by the Appellant/respondent. PER ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This ruling is in respect of that application of the Respondent by way of a motion on notice filed on the 24th June 2020 praying for the following reliefs:
1. AN ORDER setting aside the order directing that the appeal herein, to with APPEAL NO: CA/L/245/2009 between PRICE WATERHOUSE (SUED AS A FIRM) V. JOHN MOMOH be heard and determined based on the Appellant’s brief of argument alone.
2. AN ORDER setting aside the hearing of APPEAL NO: CA/L/245/2009 between PRICE WATERHOUSE (SUED AS A FIRM) V. JOHN MOMOH based on the Appellant’s brief alone.
3. AN ORDER vacating or and setting aside the Notice of Judgment dated 22nd June 2020 and issued in APPEAL NO: CA/L/245/2009 between PRICE WATERHOUSE (SUED AS A FIRM) V. JOHN MOMOH
4. AN ORDER OF EXTENTION OF TIME within which the Respondent may file and serve his Respondent’s Brief of Argument.
5. AN ORDER DEEMING AS PROPERLY FILED AND SERVED the Respondent’s brief of argument in APPEAL NO: CA/L/245/2009 between PRICE WATERHOUSE (SUED AS A FIRM) V. JOHN MOMOH
And for such further or other orders as this

Honourable Court may deem fit to grant in all the circumstances of this case.

The Application was predicated on the following grounds:
a. The lower Court on the 6th of July 2007 delivered its judgment granting the respondent’s reliefs and notice of appeal herein was filed on the 20th July 2007 and amended more than 10 years later on 27th September 2017.
b. The appellant delayed the hearing of the appeal by failing to file their Appellant’s brief of argument until more than 10 years after the appeal was filed consequent on which the Respondent filed his application to dismiss the appeal for want of diligent prosecution.
c. This Court in its discretion extended time to the appellant to file its brief of argument and granted cost in favour of the respondent.
d. The Appellant filed its brief of argument on the 10th of November 2017 and subsequently filed a motion to hear the appeal based on the appellant’s brief alone.
e. The Respondent was not served with the hearing notice for the hearing of the appellant’s motion to hear the appeal on its brief alone neither was he served with the haring notice for the date

the appeal was heard.
f. The respondent was surprised when he received a judgment notice on the appeal on the 22nd June 2020 for judgment to be delivered on Friday the 26th of June 2020
g. The respondent is desirous of putting before the Court his formidable argument in opposing this appeal and this Honourable Court possesses the power ex debitio justitiae to grant this application to enable a fair and just determination of the appeal.
h. That service of the hearing notice is fundamental and essential to the jurisdiction of the Court to hear and determine this appeal and the absence of such notice affects the competence of the appellate proceedings herein.
i. The respondent’s failure to file his brief of argument within time after receipt of the Appellant’s brief of argument was due wholly to the inadvertence of his counsel who due to immense pressure of work lost track of the Appeal because of the expiry of over twelve years since the filing of the appeal.
j. The respondent’s brief has now been filed and served and the leave of the Court is required to extend for the filing and to deem the said brief of Argument as

being properly filed and served.
k. The appellant who took over 10 years to file Appellant’s brief will not be prejudiced by the grant of this application, particularly as it has not paid part of the judgment debt but has denied the Respondent the fruit of the judgment since July 2007 when the judgment was entered in favour of the respondent.
l. It is in the interest of justice, fairness and to give the Court the whole view of the appeal that this application be granted.

In support of the application is a 17 paragraphed affidavit deposed to by Omamogho Efetobor Anthony, a legal practitioner in the law firm of Messrs Summit Law Chambers representing the Respondent in this appeal. The Appellant/respondent’s learned counsel opposed this application and filed a 14-paragraphed counter affidavit dated and filed on the 29th June 2020 by Olukemi Owolabi, a counsel in the law firm of Olajide Oyewole, LLP, counsel of the Appellant. The application was contested and so the Court ordered the parties to file and exchange written addresses. Only the Appellant/respondent’s learned counsel filed address dated and filed on the 29th June 2020 in

opposition to the application to which the Respondent/applicant filed a reply by his reply address filed on the 30th June 2020.

The application was listed for hearing on the 2nd July 2020 and learned counsel of the Respondent/applicant Ifeoluwa Ojediran Esq. with Efetobor Esq. relied on the affidavit, and the reply address in praying the Court to grant the application in the interest of justice. The learned counsel for the Appellant/respondent Muyiwa Ogungbenro leading Tobechi Ogazi, Esq., and Olukemi Owolabi, Esq. placed reliance on the counter affidavit and his written address in urging the Court to dismiss the application.

The deponent of the affidavit in support of this application averred inter alia that the failure of the Respondent to file his brief of argument was due to the inadvertence of his counsel who lost track of the appeal due to the pressure of work. He also averred that the respondent was not served with a hearing notice before the appeal was heard and subsequently reserved for judgment, but that he only received a judgment notice on 22nd June 2020 for the judgment in the appeal to be delivered on the 26th June 2020. That he is now

desirous of filing his brief and this Court has the power to, in the interest of justice to grant this application. He attached the proposed Respondent’s brief marked exhibit ‘A’ to the affidavit in support of the motion.

The deponent of the counter affidavit of the Appellant/respondent on the other hand averred that the Appellant’s brief of argument filed on the main appeal was deemed properly filed and served by the order of this Court made on the 26th October 2018. The said order was made in the presence Respondent/applicant’s counsel on record namely; Mr. Ifeoluwa Ojediran leading Ms. O. Ojetta who represented the Respondent/applicant in Court on that date. By that order of Court, the Respondent/applicant’s had 30 days within which to file his brief of argument, which lapsed on the 26th November 2018. That when the Respondent/applicant failed to file his Respondent’s brief within the time stipulated by the Rules of this Court, the Appellant/respondent filed a motion on notice by which it moved the Court to hear the appeal on the Appellant’s brief of argument alone. But despite this prompting, the

Respondent/applicant failed to file his brief of argument that has been due for more than one and half years.

On the 2nd June 2020, the Court’s officers served the parties with hearing notices for the hearing of the appeal fixed for 4th June 2020 by e-mail and SMS messages to the telephone numbers of their counsel on record. The Appellant/respondent averred that Mr. Omamogho who deposed to the affidavit in support of this application is not the counsel on record to whose number and e-mail address the hearing notices were sent, as such he is not in a position to state whether or not the notices were received.

The appeal was heard on the 4th June 2020 and subsequently reserved for judgment. That on the 23rd June, 2020, hearing notices were again sent to the counsel of the parties on record informing them that the appeal was scheduled for judgment on the 26th June 2020. However on the 25th June 2020, a day to the delivery of the judgment, the Respondent/applicant served counsel of the Appellant with this motion on notice and an advance copy of the Respondent’s brief of argument filed on the 24th June 2020 in which he alleged that he was

not served with the hearing notices for the hearing of the appeal. That the Respondent/applicant had sufficient time to file Respondent’s brief before the hearing of 4th June 2020 and he has no good excuse for not doing so or for not appearing in Court on that date the appeal was heard.

Attached to the counter affidavit are certified true copies of the affidavit of service of hearing notices filed by Mr. Moyosore Lawal (a higher executive officer of this Court), sworn to on the 2nd June 2020 stating that he sent hearing notices to both Counsel of the parties through their respective e-mails and telephone numbers. The two affidavits of service marked exhibit ‘PWC1’ (paragraph 8 of the counter affidavit) showed that the Respondent/applicant was served with notice for the hearing of the appeal coming up on the 4th June 2020 through the law firms’ email address summitlawchambers@yahoo.co.uk. Equally on the same 2nd June 2020 at 11:34 a.m. the learned Respondent/applicant’s counsel on record was also sent an SMS message informing him that the appeal was scheduled for hearing on the 4th June 2020 through his telephone No:

08098883304 and this is the same mode of service (through email and SMS message) that the Appellant/respondent’s counsel was also served with notices of hearing.

In his written address filed on the 29th June 2020 the learned Appellant’s counsel submitted two issues for determination in this application as follows:
1. Has the Applicant rebutted the presumption that his counsel was served with the hearing notice for the proceedings of 4th June 2020?
2. Can the Applicant arrest the judgment of this Court?

On the first issue he submitted that the law is trite that an affidavit of service sworn to by an officer of the Court is prima facie evidence of service of hearing notice on a party. A party who denies being served the hearing notice must file a counter affidavit showing that he did not receive the hearing notice. It is not by mere denial that the presumption of regularity of the service of the process can be rebutted. That exhibits PWC1 showed that the applicant was served with the notice of hearing of this appeal, which affidavit remained unchallenged by the applicant because the deponent of the affidavit in support of the

application was not the counsel on record to whom the hearing notice was sent to his telephone and e-mail address. The deponent did not state that he normally received e-mails on behalf of the law firm, or that the telephone number to which the notice was sent belonged to the deponent of the affidavit. The learned counsel relied in support of his submissions on the cases of Chief Leo Degreat Mgbenwelu V. Augustine Olumba (2016) LPELR-42811 (SC), Emeka V. Okoroafor & Ors. (2017) LPELR-41738 (SC), C. M. & E. S. Ltd V. Pazan Services Ltd (2020) 1 NWLR (pt. 1704) 70.

In response to the Respondent/applicant’s prayer that his application should be granted in the interest of justice and not to visit the sins of counsel on him, learned Appellant’s counsel posited that the Respondent having been present when the Appellant’s brief was deemed properly filed had sufficient time to file the Respondent’s brief of argument. His failure to take advantage of the opportunity to so do cannot amount to denial of fair hearing. Further that a recalcitrant and defaulting party should not be allowed to hold the Court and other parties to ransom and

when a party displayed lack of seriousness or nonchalance in the pursuit of his case, the Court must not indulge him. He also argued that it is not all inadvertence of counsel that would be deemed as sin of counsel, which would not be visited on the client/party. He urged the Court to resolve issue one in favour of the Appellant/respondent placing reliance on the decisions of the Supreme Court and this Court in the cases of Military Gov. of Lagos State & Ors. V. Adeyiga & Ors. (2012) LPELR-7836 (SC), Darma V. Eco Bank (2017) LPELR-41663 (SC), Adeyinka & Ors. V. Agbakwuru & Ors (2019) LPELR-46824 (CA), NNPC V. Samfadek & Sons Ltd (2018) LPELR-44980 (SC) and Registered Trustees of the Prefecture Apostolic Of Ibadan V. Maninouri Adegboyega Aare Latosa & Ors. (2019) LPELR-48118 (CA).

On the second issue, the learned counsel submitted that this application is aimed at arresting the judgment of this Court, which has been held to be “all things anathema to rule of law”. This is because the record of this Court showed that the appeal having been duly heard on the 4th June 2020, there was no other proceeding pending save for the

delivery of judgment. He relied on the cases of News Watch Communications Ltd V. Atta (2006) 12 NWLR (pt. 993) 144 at 179 and Ukachukwu V. PDP & Ors. (2013) LPELR-21894 (SC) in support and to submit further that the application amounted to abuse of Court’s process and to dismiss it.

Though the learned Respondent/ applicant’s counsel chose not file a written address in support of his application, but he filed a reply on points of law to the Applicant’s learned counsel submissions. He referred us to the decision of this Court in Ajagungbade V. Governor of Oyo State & Ors (2018) LPELR- 45968, which he said is on all fours with the present application in which the same arguments were presented and the Court still granted the application. He urged the Court to also grant this applicant.

On the argument of the Appellant/respondent’s counsel that this application amounts to arrest of judgment of the Court, the learned Counsel submitted on the authority of the case of Ajagungbade’s case (supra) that an application filed after reserving judgment does not amount to arrest of judgment, but it was meant to allow the Court

decides the matter on the merits. He urged us to discountenance the cases cited by the Appellant’s learned Counsel because they are inapplicable to this case.

DETERMINATION
Only the Appellant’s learned Counsel filed written address in opposition to the application under consideration. I therefore adopt the only issues formulated by for my determination of this application.

ISSUE ONE
The genesis of this application is that this Court heard the Appeal NO: CA/L/245/09 –PRICE WATER HOUSE (SUED AS A FIRM) V. MR. JOHN MOMOH, on the 4th June 2020 and adjourned it for judgment to a date to be communicated to the parties. On the 22nd June, 2020, upon the direction of this Court, the Registrar issued hearing notices to the parties informing them the Judgment is ready for delivery on the 26th June 2020. On that date, the appeal was listed in the Court’s cause for judgment and called. Upon announcement of counsel’s appearances, learned Counsel to the Respondent informed the Court that he had filed this application two days earlier by which he prayed the Court to set aside its earlier order of hearing the appeal on the

Appellant’s brief alone. He also prayed for extension of time to file the Respondent’s brief out of time and deeming order. In other words, the applicant prayed that the appeal be re-opened for re-hearing.

The said application was not brought to the attention of the panel of Justices that heard and reserved the appeal for judgment until at the point of delivery of the judgment, thus effectively arresting/stalling the delivery of the judgment.

The main grouse of the Respondent/applicant is that he was not served with notice of hearing before the appeal was heard. This complaint is gleaned from his ground (e) and paragraphs 6 and 7 of his affidavit in support where the deponent of the affidavit in support of this application averred that:
6. “The Appellant filed its brief of argument on the 10th November 2017 and subsequently filed a motion to hear the appeal based on the appellant’s brief alone. The brief of argument was deemed filed and served on the Respondent on the 26th October 2018.
7. The respondent was not served with the Hearing Notice for the hearing of the Appellant’s motion to hear the appeal based on

its brief alone neither was he served with the Hearing Notice for the date the appeal was heard.”
Service of notice of hearing to the parties in an appeal or any Court proceedings is the precondition and sine quo non to the jurisdiction of the Court to hear the appeal, which was the reason why the delivery of the judgment was tarried, for if this claim of the applicant is correct, it will amount to breach of the Respondent’s right to fair hearing. It is trite law that where a notice of hearing in required to be issued to the parties of an appeal, a failure to notify any of the parties is a fundamental omission being a requirement the right to fair hearing and fair trial. It is therefore a condition precedent to the exercise of the Court’s jurisdiction to determine the appeal. Where a party to an appeal or any Court’s proceedings is not served with the notice of that proceeding, the proceeding will be a nullity and the party is entitled to have whatever order was made in his absence set aside. See UBN Plc. V. Okonkwo (2004) 5 NWLR (pt. 867) 445 and Okeke V. Petmag Nig. Ltd (2005) 4 NWLR (pt. 915) 245.

Court enquired from the Registrar whether the Respondent was notified of the date and the Registrar reported that the Respondent was served through counsel with notice for hearing of the appeal through both e-mail and SMS to his counsel’s telephone number on record. Order 2 Rule 5 of this Court’s Rules 2016 allows service of hearing notices through electronic mail addresses and telephone numbers. We were therefore satisfied with the report of service made by the Registrar in open Court and we preceded to the hearing of the appeal.

The record of Court is in accord of the facts deposed in the counter affidavit of the Appellant to which the affidavit of service to the applicant’s counsel was exhibited. The Applicant did not deem it fit to file a further affidavit to contradict the sworn affidavit of service of the Court’s official. Rather than file a further affidavit to contradict the facts that he was served with the hearing notice for the hearing of the appeal, he chose to rely on reply address. Argument in counsel’s address cannot contradict affidavit evidence and the failure to file a further affidavit to the counter

affidavit of the Appellant/respondent means that the facts deposed, especially as related to the service of the hearing notice on the applicant’s counsel remained unchallenged and the applicant is deemed to have admitted them. See Owuru & Anor. V. Adigwu & Anor. (2017) LPELR-46763 (SC).
In this circumstance, the Court is entitled to accept the facts deposed in the counter affidavit of the Appellant being unchallenged. I also agree with the learned Appellant/respondent’s counsel that the bare assertion of non service without stating the facts to show indeed the affidavit of service is false is insufficient to rebut the presumption of regularity of the Court’s official’s affidavit of service. He was duly notified of the date of the hearing of the appeal, but chose to attend Court. The hearing of the appeal was therefore not in breach of his right to hearing and I so hold.

The learned Applicant’s counsel has also referred to and placed heavy reliance on the cases of Ajagungbade V. Gov. of Oyo State & Ors. (supra) and others to the effect that the attitude of the Court has always been whenever possible, to

determine the case on the merit. This is so, but the balance of convenience has to be weighed to avoid overreaching the other parties to the appeal. In the present appeal, the Respondent not only refused to file his brief for over one and half years, but also ignored the prompting of the Appellant’s application for the appeal to be heard on the Appellant’s brief alone, only to make an unsubstantiated assertion that he was not aware of the hearing date.
The law remains that the Respondent/applicant has to succeed on the strength of the materials furnished to the Court upon which basis he requested the exercise of its discretion in his favour. No such sufficient materials were placed by the applicant before the Court to justify the exercise of the Court’s discretion in his favour.

Issue one is resolved against he Respondent/applicant.

ISSUE TWO
This issue is whether the Respondent/applicant can arrest the judgment of this Court. This issue has been spent because as earlier stated, the application effectively stalled the delivery of the Court’s judgment by this application. The Court suo moto chose not to deliver the

judgment perchance that the complaint of the Applicant that he was not notified of the hearing of the appeal was correct. This issue is therefore irrelevant in the circumstance and it is struck out.
In conclusion, this application has no merit and it is dismissed by me. Parties to bear their cost.

MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead Ruling written by my learned brother Balkisu Bello Aliyu, JCA in respect of this application, I find myself in complete agreement with the views expressed on the spurious claim of non service of Hearing Notice of the appeal on him by the counsel for the Applicant/Respondent, which was merely meant to arrest the judgment in the appeal. Counsel abandoned the appeal after he was duly served Appellant’s Brief and ignored the notice that the appeal was to be heard on the Appellant’s Brief alone.

The application is bereft of any fact deserving of the Court’s indulgence and I join the lead Ruling in dismissing it.
There shall be costs of N100,000.00 in favour of the Appellant/Respondent to the application

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My Lord, the HON. JUSTICE B. B. ALIYU,

JCA had graciously obliged me with a draft of the lead Ruling just delivered in which he found no merit in the Respondent/Applicant’s Motion on Notice filed on 24th June, 2020 and has consequently dismissed it.

I too cannot find any merit in the said application because, the affidavit of service deposed to by the Court’s Bailiff who served both parties on the same date and by the same mode of service belied the assertions of non-service untruthfully deposed to in the affidavit filed in support of the said Motion on Notice.

The Motion on Notice is dismissed, and I abide with the consequential order made that the judgment of the Court be delivered forthwith.

Application is dismissed.

Appearances:

IFEOLUWA OJEDIRAN ESQ. WITH HIM, EFETOBOR OMAMOGHO ESQ. For Appellant(s)

MUYIWA OGUNGBENRO ESQ. WITH HIM, TOBECHI OGAZI ESQ. AND OLUKEMI OWOLABI ESQ. For Respondent(s)