OSIOMWANRE v. EDEGBE & ORS
(2020)LCN/15469(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Monday, December 14, 2020
CA/B/132/2010
RATIO
COURT PROCESS: RELEVANCE OF SERVICE
The law is that failure to serve a Court process, where service is required, is a fundamental vice which deprives the Court of its necessary competence and jurisdiction to entertain the cause or matter. See Odutola v. Kayode (1994) 2 SCNJ 1; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 5; Mark v. Eke (2004) FWLR (Pt. 200) 1455; Kida v. Ogunmola (2007) All FWLR (Pt. 351) 1456 and UBA PLC v. Magama (Nig.) Ltd. (2013) 16 NWLR (Pt. 1379) 36.
As settled by numerous judicial authorities, the aim or object of service of Court processes is to give notice to the party so that he should be aware of the pending action. SeeOkoye v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt.1110) 335 and Akeredolu v. Abraham (2018) 10 NWLR (Pt. 1628) 510. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
MRS. OMOIYEKEMEN OSIOMWANRE APPELANT(S)
And
1. MR. ELVIS SAMUEL EDEGBE 2. MISS LAWRENTA OBANOR 3. MR. AUGUSTINE ONOREGBE RESPONDENT(S)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant, as the claimant in Suit No. B/100/1996 instituted in the High Court of Edo State, holden at Benin City, claimed against the defendants therein, namely: (1) SAMUEL EDEGBE IGBINEDION (2) LAWRENTA OBANOR and (3) AUGUSTINE OMOREGBE, the following relief:
“(1) A declaration that the plaintiff is the person entitled to a statutory right of occupancy in respect of her piece of land marked parcels “A”, “B”, “C” and “D” of the amended survey plan at Okanevbuogo, Oka, Upper Sakponba Road, Benin City measuring about 100ft by 200ft into which the defendants have trespassed and to which they are lacking spurious claims of ownership despite the fact that the leaders and elders of the six (6) Oka Village had looked into the case and decided it in favour of the plaintiff. The land in dispute is very well known by the parties to this action and the leaders and elders of the six Oka Villages.
(2) N2 Million being damages for the defendants trespass to the land and the 1st defendant’s destruction of her house.
(3) Perpetual injunction restraining the defendants, their servants, agents and privies from any further acts of trespass on the land.”
After exchange of pleadings, taking of evidence and hearing of addresses of learned counsel, the trial Court per Hon. Justice A. N. Erhabor, delivered a reserved judgment on 01/02/2008 in favour of the appellant. However, on 25/03/2008, the 3rd respondent filed a motion on notice wherein he sought the following orders:
“(a) An order to set aside the judgment obtained in suit No. B/100/96 by the plaintiff/respondent on 1st February, 2008 as it affects the 3rd defendant/applicant, which judgment was delivered without jurisdiction, and
(b) An order for stay of execution of the judgment pending the determination of this motion.”
The 3rd respondent’s motion on notice was opposed by the appellant and after hearing the said motion, the lower Court per Hon. Justice E. O. Ahamioje, rendered a reserved ruling on 11/05/2009 whereby the Court concluded and ordered as follows:
“In the final analysis, I adjudge this application to be meritorious, and it hereby succeeds. The judgment delivered in Suit No. B/100/96 on the 1/2/2008 is hereby set aside for want of jurisdiction.
It is hereby ordered that this suit shall be relisted on the general cause list for hearing and determination on the merits. In view of the chequered history of this case, accelerated hearing is hereby ordered.
I make no order as to costs.”
This appeal is against the above decision.
During the pendency of the appeal, the original 1st respondent – Samuel Edegbe Igbinedion died and, by an order of this court, he was substituted with the present 1st respondent.
In the appellant’s brief, filed on 20/06/2018 and deemed as properly filed on 10/03/2020, learned counsel raised the following three issues for determination:
“1. Whether or not it is the writ of summons and statement of claim rather than the memorandum of appearance or Hearing Notice that originates a suit. This issue is distilled from Grounds one and two of the Ground of Appeal.
2. Whether by virtue of Order 37, Rule 7 of the High Court (Civil Procedure) Rules, 1988 of Bendel State applicable to Edo State, a Court has any other option than to give judgment for a deserving plaintiff once the defendant(s) abandoned the suit halfway. This issue is distilled from Ground Three of the Ground of Appeal.
3. Whether or not the lower Court judge exercised his discretion judicially and judiciously in the circumstances of this case by setting aside the judgment given by JUSTICE AN. ERABOR. This issue is distilled from Ground four of the Ground of Appeal.”
The 2nd and 3rd respondents filed a joint brief on 18/06/2019 but it was deemed as filed on 10/03/2020. In the said brief, learned counsel raised and argued a preliminary objection and also distilled one issue for determination as follows:
“Whether there was valid proof of service of hearing notices on the 3rd Respondent so as to vest the Court with jurisdiction to hear the matter and enter judgment against the 3rd respondent in default of defence.”
2ND AND 3RD RESPONDENTS’ PRELIMINARY OBJECTION
As stated earlier, learned counsel for the 2nd and 3rd respondents raised and argued a preliminary objection in their brief. However, at the hearing of the appeal, the 2nd and 3rd respondents did not move the Court in respect of their preliminary objection.
The law deems a preliminary objection, not moved before the hearing of an appeal, as abandoned and liable to be struck out. SeeAjide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Tiza v. Begha (2005) 33 WRN 158; Ben v. State (2006) 12 SCMR (Pt. 2) 71; Oforkire v. Maduike (2003) 5 NWLR (Pt.812) 166; Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) 1; Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421 andPDP v. Umeh (2017) 12 NWLR (Pt. 1579) 272.
The 2nd and 3rd respondents are deemed to have abandoned their preliminary objection and same is hereby struck out.
SUBSTANTIVE APPEAL
I have considered the issues raised by the parties and I am of the humble opinion that the issue identified by the learned counsel for the 2nd and 3rd respondents is the live issue which calls for resolution in this appeal. I adopt the 2nd and 3rd respondents’ issue to determine this appeal and the issue is:
“Whether there was valid proof of service of hearing notices on the 3rd Respondent so as to vest the Court with jurisdiction to hear the matter and enter judgment against the 3rd respondent in default of defence.”
The learned counsel for the appellant contended that the 3rd respondent was the 3rd defendant in Suit No. B/100/1996 and was served with hearing notices. Counsel submitted, inter alia, as follows:
“…the inaccurate spelling of the first name of the 3rd respondent in some of the affidavit of service in this case cannot prejudice its otherwise efficacy which is that the hearing notices taken out by the trial Court have been served on him.
From the foregoing, we urge your Lordships to hold that not all mistakes lead to setting aside of judgment and in this case the judgment ought not to be set aside. Also that the services of hearing notices on the 3rd respondent who is previously aware of the case in Court, although his first name was wrongly spelt by the bailiff on some of the affidavit of service, constitute effective service in accordance with Order 12 Rule 2 of the High Court (Civil Procedure) Rules, 1988 of Bendel State applicable to Edo State.”
On the other hand, learned counsel for the 2nd and 3rd respondents argued that:
“The proof of service of the hearing notices showing that the processes were served on Anthony Omorogbe as opposed to Augustine Omoregbe amounts to invalid service of the processes which ip so facto had stripped the Court of jurisdiction to entertain the matter for want of proper service in the first place.”
By the affidavit in support of the 3rd respondent’s motion on notice filed on 25/03/2008, the 3rd respondent’s main complaint is that in the hearing notices, for example Exhibits “C” and “D”, issued and served on him in Suit No. B/100/1996, he was referred to as Anthony Omoregbe and he ignored the hearing notices because they did not bear his name. See paragraphs 7 and 8 of the affidavit in support of the 3rd respondent’s motion on notice which are hereunder reproduced:
“7. That on the 20th day of July 2007, I returned from Port Harcourt where I reside to see my family in Benin City as I occasionally do, and on that day, my wife drew my attention to a hearing notice dated 6th July, 2007 which was addressed to one Mr. Anthony Omoregbe as 3rd defendant in Suit No. B/100/1996 and not Suit No. B/32/96 but because it did not bear my name and the Suit number in which I was sued, I ignored it. The Certified True Copy of the said hearing notice is attached herewith and marked as Exhibit “C”.
8. That on the 15th day of February, 2008, I again returned from Port Harcourt to see my family in Benin City, and my wife again drew my attention to another hearing notice dated 15th January, 2008 also addressed to one Mr. Anthony Omoregbe as 3rd defendant in Suit No. B/100/96. The Certified True Copy of the said hearing notice is attached herewith and marked as Exhibit “D”.”
In its ruling, the trial Court held inter alia, as follows:
“Admittedly, the conduct of the Bailiffs who effected services in the instant case, does not give any body cause for celebration. I note with regret and sadness that the Bailiffs completely messed up the service of processes in this case which had led to this regrettable and unfortunate situation the parties, and the court is faced with. This unfortunate situation would have been avoided if the Bailiffs had exercise a little bit of caution and circumspection in ensuring that the proper name and the correct suit number are reflected on the Hearing Notices served on the Applicant in this case.”
(Underlining mine, for the sake of emphasis)
From the 3rd respondent’s deposition in paragraphs 7 and 8 of the affidavit in support of his application, he (the 3rd respondent) ignored the notices of hearing in Suit No. B/100/96, served on him, because they did not bear his correct name.
On the other hand, the appellant deposed in her counter affidavit, amongst other things that the original 1st respondent – Samuel Edegbe Igbinedion was the plaintiff in Suit No. B/32/1996 while she was the defendant thereto; that she filed Suit No. B/100/1996 as plaintiff, while the said Samuel Edegbe Igbinedion was the defendant thereto; that she had to amend her writ of summons and statement of claim to include the 2nd and 3rd respondents as defendants, when she discovered that they were the people who sold the land in dispute to the said Samuel Edegbe Igbinedion; and that the amended writ of summons and statement of claim were served on all the defendants, namely the respondents in this Court. She tendered one of the hearing notices as Exhibit “D”. See paragraphs 4, 7 and 8 of the appellant’s counter affidavit to the 3rd respondent’s motion on notice.
Without belabouring the issue, I am of the view that if the lower Court had properly adverted its judicial mind to the totality of the facts and circumstances of this case, it would have reached the irresistible conclusion that the 3rd respondent failed, neglected or refused to appear in Court to defend the appellant’s action or suit on the ground excuse that the hearing notices served on him erroneously referred to him as “Anthony” Omoregbe instead of “Augustine” Omoregbe. He did not allege that the amended writ of summons and amended statement of claim in Suit No. B/100/1996 were not served on him.
It will be making a caricature of the administration of justice to set aside a judgment of a competent Court of law merely because a bailiff or an officer of Court, out of sheer mistake or slip issues a hearing notice based on a misnomer of a party. The 3rd respondent who was served with the appellant’s amended writ of summons and amended statement of claim, and knew of the appellant’s claim, especially as the land or property in dispute was clearly described or specified in these processes, ought not to have ignored attending Court to defend the action, in any manner or way or by any means he deemed fit and proper, on the mere ground that there was a mix-up in his name.
The law is that failure to serve a Court process, where service is required, is a fundamental vice which deprives the Court of its necessary competence and jurisdiction to entertain the cause or matter. See Odutola v. Kayode (1994) 2 SCNJ 1; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 5; Mark v. Eke (2004) FWLR (Pt. 200) 1455; Kida v. Ogunmola (2007) All FWLR (Pt. 351) 1456 and UBA PLC v. Magama (Nig.) Ltd. (2013) 16 NWLR (Pt. 1379) 36.
As settled by numerous judicial authorities, the aim or object of service of Court processes is to give notice to the party so that he should be aware of the pending action. SeeOkoye v. Centre Point Merchant Bank Ltd. (2008) 15 NWLR (Pt.1110) 335 and Akeredolu v. Abraham (2018) 10 NWLR (Pt. 1628) 510.
The 3rd respondent lays claim to the land or property in dispute and upon service of the appellant’s amended writ of summons and amended statement of claim on him, he ought to have appeared in Court since by these amended processes, the appellant was also laying claim to ownership of the same land or property.
It is trite that where a person has been duly served with an originating process and he chooses to ignore it, he does so to his detriment and should not later complain of the consequence of his failure. See Barrister Ismael Ahmed v. Alhaji Nasiru Ahmed (2013) 15 NWLR (Pt. 1377) 274.
In this case, the 3rd respondent ignored the appellant’s claim merely because the hearing notices served on him bear Anthony Omoregbe instead of Augustine Omoregbe as stated in the appellant’s amended writ of summons and amended statement of claim. By his failure to appear in Court on this flimsy excuse, the 3rd respondent shot himself in his foot, so to say, and should bear the consequence of his failure.
Without further ado, I resolve the live issue in the appeal in favour of the appellant and against the respondents.
Having resolved the germane issue in favour of the appellant, there is merit in the appeal. The appeal is hereby allowed.
Consequently, the ruling of the lower court delivered on 11/05/2009, whereby the 3rd respondent’s motion on notice filed on 25/03/2008 was granted, is hereby set aside. In place of the decision of the lower court made on 11/05/2009, an order is hereby made dismissing the 3rd respondent’s motion on notice filed on 25/03/2008 for being devoid of any merit.
The parties are ordered to pay their respective costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. just delivered. I am in complete agreement with the adroit reasoning leading to the inescapable conclusions reached therein. I therefore, adopt the same as mine and I have nothing more to add.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the lead judgment just delivered by my learned brother, M.A.A. Adumein, J.C.A. in which he adjudged the instant appeal as meritorious and allowed it.
I really do not have additions to make to the comprehensive resolution of the issues argued in the appeal.
I adopt the said judgment as mine, and I abide with the consequential orders made as to costs.
Appearances:
I. N. Ewansiha, Esq. For Appellant(s)
G. E. Ezomo, Esq. – for the 2nd and 3rd Respondents. For Respondent(s)
