ITA BASSEY OROK AMIKA & ANOR. v. MRS PATICIA E. IRONBAR & 9 ORS.
(2010)LCN/3601(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of March, 2010
CA/C/126/2006
RATIO
APPEAL: WHERE SHOULD AN ISSUE FOR DETERMINATION ARISE FROM
It is a well settled and time tested principle of law that in an appeal, an issue for determination must arise from the ground or grounds of appeal. Any issue not based on a ground (s) of appeal goes to no issue and ought to be discountenanced and struck out. PER JEAN OMOKRI, J.C.A.
APPEAL: ESSENCE OF AN ISSUE FOR DETERMINATION
It should be noted that an issue for determination is a question, usually a proposition of law or of fact, in dispute between the parties, necessary for determination by the Court and the determination of which will normally affect the result of the appeal. The purpose of issues for determination is to enable the parties narrow the issues in the ground or grounds of appeal filed in the interest of accuracy, clarity and brevity. See Ogbuanyinya vs. Okudo (No. 2) (1990) 8 NWLR (Pt.146)55. PER JEAN OMOKRI, J.C.A.
APPEAL: EFFECT OF AN ISSUE FOR DETERMINATION NOT PREDICATED ON ANY GROUND OF APPEAL
An issue for determination in an appeal must arise from the ground or grounds of appeal. Where an issue for determination is not predicated on any ground of appeal, the issue becomes incompetent and liable to be struck out. See Osinupebi vs. Saibu (1982) 7 SC 104 at 110-111; Owhonda vs. Ekpechi (supra) Ikhazuagbe vs. COP (supra); Dada vs. Sosunmu (2006) 18 NWLR (Pt. 1010) 134 at 165-166. FRN vs. Obegolu (2006) 18 NWLR (Pt. 1010) 188 at 221. Appeals are heard and decided on issue or issues raised on the ground or grounds of appeal filed before the court. PER JEAN OMOKRI, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
N. S. NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
1. ITA BASSEY OROK AMIKA
2. EDET BASSEY AMIKA Appellant(s)
AND
MRS PATICIA E. IRONBAR & 9 ORS Respondent(s)
JEAN OMOKRI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Michael Edem of the High Court of Cross River State, in Suit No. C/96/77 delivered on 6/3/2003, wherein the court granted all the claims of the respondents.
The respondents herein, as plaintiffs in the court below, instituted the suit leading to this appeal on 18/8/77 against the appellants, who were the defendants, in a representative capacity, claiming in paragraph 19 (a)-(d) of the further amended statement of claim, at page 91 of the records, as follows:
(a) A declaration that all that property lying and situate at No. 141 Goldie Street, Calabar, and bounded in the North by Akim Qua Land, in the South by Goldie Street, Calabar in the West by Effiong land and in the East by Eta Egbor Street, Calabar is the family property of Chief Paul Awo Nki (Deceased) absolutely.
(b) Cancellation of any agreement entered into between the Defendants and any person whomsoever in respect of the said land.
(c) N91,050.00 damages for trespass in that the Defendants have broken into and entered the said land, destroyed the Plaintiffs’ house economic trees and crops, and have purported to lease the said land to diverse persons.
(d) An injunction to restrain the Defendants either by themselves, their servants, workmen and/or servants from committing further acts of trespass on the said land.
At the conclusion of the hearing of the evidence of witnesses and after considering and reviewing the submissions of learned counsel in the case, the court below entered judgment for the respondents as per their claims.
Dissatisfied with the decision of the court below, the appellants appealed to this court on a lone ground subscribed in the notice and grounds of appeal dated and filed on 7/3/03. Although the appellants indicated in the notice and grounds of appeal that more grounds would be filed, no further grounds were filed.
The appellant, in their brief of argument, which is undated but filed on 19/6/07, formulated one issue for determination, as follows:
“Whether a court of law can have the jurisdiction to hear and determine this matter when the originating process and the requisite hearing notices has (sic) not been issued or served on the parties.”
The appellants brief was settled by David Obande Esq.
The Respondents, in their brief dated 25/3/09 and filed on 27/3/09 initially raised a preliminary objection but it was withdrawn before this court on 13/1/2010 and struck out. The respondents, like the appellants also formulated one issue. The issue is:
“Whether having regard to the particular capacity in which the defendants were sued, the appellants herein were entitled to be served a fresh with the writ of summons, Statement of Claim and other processes of court after they were substituted by order of court on 1st June, 1992.
The respondents’ brief was settled by E. O. E. Ekong, Esq.
I observed that the learned counsel for the appellants, Mr. David Obande in the appellants’ brief argued the issue of service copiously. Upon a calm view of the submissions of learned counsel, the issue before the court is simply whether or not the present appellants, as defendants before the court below, where served with the originating processes and the requisite hearing notices.
Mr. Obande contended that the appellants were not served with the writ of summons and statement of claim of the plaintiff nor where they served with hearing notice, therefore the entire proceedings were palpably irregular, and ought to be vitiated. Here relied on Mobil (Nig) Plc vs. Pani (2001) 5 NWLR (Pt.657) 506 at 526; Adisa v. Teno Eng. Ltd. (2000) 1 NWLR (Pt.675) 633 at 650. He posited that service of notice on the appellants is one of the conditions precedent before the trial court can have competence and jurisdiction. He relied on Sken Consult (Nig.) Ltd & Anor vs. Ukay (1981) 1516; Craig vs. Kannsen (1943) KB 256 at 263 – 264; FCMB vs. Abiola & Sons Ltd. (1991) 1 NWLR (Pt.165) 14 at 28 – 29; Dan Hausa & Co. vs. Panatrade Ltd. (1993) 6 NWLR (pt.298) 204 at 214; Comm. Ltd vs. Onoh (1998) 5 NWLR (Pt.549) 197; Obina v. UBA (supra). Counsel, pointed out that Chief Richard Efa, who is on record as counsel for the defendants was not briefed by any of the appellants and that there, was no scintilla of evidence in the record to show any interaction between the said Richard Efa and the appellants throughout the proceedings.
Counsel contended that the documents forming part of the additional record are neither here nor there as they have no bearing with the instant case on appeal. He pointed out that the trial judge did not make any reference nor relied on any affidavit of service despite the absence of the appellants before him and no hearing notice to the appellants was ordered through out the trial.
Mr.Obande also contended that on their merits, the documents in the additional record do not, on close scrutiny disclose personal service on the two appellants. Counsel concluded that the force of the presumption:
“Omnia praesumntur rite esse acta”
Varies with all circumstances. Relying on Mohammed vs. Mustapha (1993) 5 NWLR (Pt.292) 222 at 232, counsel submitted that the appellants are not precluded from rebutting the service. He referred to pages 69, 72 and 140 of the record and paragraph 8 of the affidavit at page 72 of the record and submitted that the appellants were not served with the necessary processes of the trial court which were essential for the court to assume jurisdiction and in the absence of service the whole proceedings including judgment stands vitiated.
Learned counsel for the respondents, Mr. E. O. E. Ekong, who adopted the respondents brief submitted that the learned trial judge was right in entering judgment against the appellants having regard to the relevant facts presented before the court below. Mr. Idiegbe pointed out that:
(a) The Respondents (as Plaintiffs in the Lower Court) commenced the suit leading to this appeal in representative capacity against Bassey Orok Amika & 9 others (the original Defendants) on behalf of themselves and as representation the Mma Amika Utuk family as per the enrolled Order of the High Court of Cross River State.
(Please se at page 18 of the Record of Appeal); (underlining mine)
(b) The said Bassey Orok Amika who was the Head of Mma Amika Utuk family at the time is the father of Ita Bassey Orok Amika and Edet Bassey Orok Amika (the Appellants herein)
(c) Upon being served with the Plaintiffs’ Amended Statement of Claim dated 21st May, 1981, the 1st to 3rd Defendants at the Lower Court filed their amended Statement of Defence dated 3rd April, 1987 and contested this suit in representative capacity through out in the Court below. (Please see at pages 33-43, 48-50 and 131-132 of the Record of Appeal).
(e) Pursuant to a Motion on Notice filed by Plaintiffs’ Counsel (Edem Effiom Ekong, Esq.), Honourable Justice E. E. Arikpo (as he then was) struck out the names of the original 1st, 2nd, 10th Defendants as parties to the substantive suit on the 1st of June, 1992 and substituted Ita and 2nd Defendants respectively. (Please see at pages 69-75 and 143 of the Record of Appeal).
He then submitted that in a representative action, such as the one in the instant appeal, the named parties or accredited representatives, who are “dominus litis” are not the only parties to the action. The other whom they represent are also parties to the action and they are bound by the decision of the court even though their names do not appear in the title to the proceedings. Counsel posited that where a person is substituted for the original party of the court for any reason, the effect is to bring him in as at the date the original writ of summons was issued and served. He supported his submission with the cases of Daniyan & Anor vs. Iyayin & 3 others (2002) FWLR (Pt.120) 1805 at 1810; Okoli vs. The Suryeyor-General Anambra State (2002) FWLR (Pt.108) 1445 at 1446 – 1447 and Oloruntoba-Oju & 5 others vs. Dopamu (2003) FWLR (Pt.158) 1268 at 1273. Counsel posited also that the appellants were duly served with the amended statement of claim and other court proce3sses as shown at pages 11-12 of the additional record of appeal.
Upon being served with the said record as ordered by the trial judge, the 1st appellant made his appearance at the trial court on 6/7/92 and the 2ml appellant appeared on the 2/2/93. Also, the 1st appellant appeared in court on 9/4/02 before Justice Michael Edem. He referred the court to pages 143-177 and 201 of the record and concluded that the appellants participated fully in the trial at the lower court and they never objected to the proceedings nor raised the issue of non service of the court processes when they had ample opportunity to do so. Therefore, they cannot now complain of lack of fair hearing.
On the question of the appellant’s tenants in actual possession of the disputed land not being joined or served as persons in possession, learned counsel submitted that, it was not an issue arising from the appellants’ grounds of appeal and as such it should be struck out. He relied on Owhonda vs. Ekpechi (2003) FWLR (Pt.181) 1565-1571; Ikhazhagbe vs. COP (2005) ALL FWLR (Pt. 266) 1323-1325.
Lastly, counsel submitted that Richard Efa (of counsel for the defendants/appellants) appeared before the lower court on the 1/2/93 and the 2nd appellant was present in court when he announced his appearance for the appellants and informed the lower court that he was just coming into the matter for the first time and was yet to retrieve the case file from Obong Ukpama, without any objection from the 2nd appellant. Counsel concluded that where parties by conduct voluntarily opt out of trial when they had adequate information of the hearing date and venue of the trial, they cannot turn around to complain of want of fair hearing. In support of his submission, learned counsel relied on Mohammed vs. Kpelai (2001) FWLR (Pt. 09) 1404 at 1406-1407 and A.N.C.E. Ltd. vs. Udoh (supra).
He concluded that the appellants’ submission on the provisions of Order 22 Rule 4 of the High Court of Cross River State (Civil Procedure) Rules 1987, at pages 22 to 28 of the appellants brief cannot be entertained. He argued that the issue was being raised for the first time on appeal, the appellants require leave of the court, which leave has not been sought or granted, therefore following the decisions in U.T. Bank Ltd & 2 ors. Vs. Dolmetsch Pharmacy (Nigeria) Ltd. (2007) MJSC Vol.8 page 1 at 6; Joe vs. Dom (2001) FWLR (Pt. 63) 2026-2027; Nitel Plc vs. Ocholi (2001) FWLR (Pt. 74) 254 at 260 and Incar Nigeria Plc & anor. Vs. Bolex Enterprises (Nig) 2001 FWLR (Pt. 58) 1187 at 1189; the arguments should be struck out.
I have carefully examined and considered the issues for determination formulated by the parties in this appeal in their briefs of argument. The parties formulated one issue a piece which are identical. That being the case, I shall adopt the lone issue formulated by the appellants for the determination of this appeal.
Before going into the merits of this appeal, there are some collateral or ancillary issues which must be dealt with presently at this initial stage.
Firstly, the contention of the appellants at paragraph 26 of the appellants’ brief of argument that:
“the Defendants’ tenants in actual possession of the disputed land were neither joined in the action as parties nor were they served as persons in possession.”
Is not an issue arising from the lone ground of appeal filed or the lone issue for determination formulated by the appellant in their brief of argument.
It is a well settled and time tested principle of law that in an appeal, an issue for determination must arise from the ground or grounds of appeal. Any issue not based on a ground (s) of appeal goes to no issue and ought to be discountenanced and struck out.
It should be noted that an issue for determination is a question, usually a proposition of law or of fact, in dispute between the parties, necessary for determination by the Court and the determination of which will normally affect the result of the appeal. The purpose of issues for determination is to enable the parties narrow the issues in the ground or grounds of appeal filed in the interest of accuracy, clarity and brevity. See Ogbuanyinya vs. Okudo (No. 2) (1990) 8 NWLR (Pt.146)55.
An issue for determination in an appeal must arise from the ground or grounds of appeal. Where an issue for determination is not predicated on any ground of appeal, the issue becomes incompetent and liable to be struck out. See Osinupebi vs. Saibu (1982) 7 SC 104 at 110-111; Owhonda vs. Ekpechi (supra) Ikhazuagbe vs. COP (supra); Dada vs. Sosunmu (2006) 18 NWLR (Pt. 1010) 134 at 165-166. FRN vs. Obegolu (2006) 18 NWLR (Pt. 1010) 188 at 221. Appeals are heard and decided on issue or issues raised on the ground or grounds of appeal filed before the court. The issue raised in paragraph 26 in the appellants’ brief is incompetent and it is hereby struck out. Secondly, the appellants reproduced and made submission on the provisions of Order 12 Rule 2 and Order 22 Rule 4 of the High Court (Civil Procedure) Rules of Cross River State, 1987 (which was the applicable Rule at the time at paragraphs 22 to 28 in the appellants’ brief. After a careful perusal of the record of proceedings in this appeal, I observed that, the issue was not raised or argued before the trial court.
Thus, this is a new issue raised for the first time in this appeal. It is trite, that an appellant will not be allowed to raise on appeal a point or issue that was not raised or canvassed or argued at the trial or considered by the trial court without the leave of the appeal court. The aforesaid issue came up for the first time in this court without the required leave first had and obtained. In the circumstances the issue must be disregarded or discountenanced by this court. See Leaders & Co. Nig. Ltd. vs. Kusamotu (2004) 4 NWLR (Pt. 864) 519; Fardoun vs. M.B. Cont. Bank Ltd. (2006) ALL FWLR 1130; Oke vs. Oke (2006) 17 NWLR (Pt. 1008) 224 at 237-238; Kasumu vs. Shitta Bev (2006) 17 NWLR (Pt. 1008) 372 at 442 and 434 and UTB Ltd & 2 Ors. vs. Dolmetsch Pharmacy (Nigeria) Ltd. (2007) MJSC Vol. 8 (Page 1) at 6. The aforesaid issue having been raised in the appellants’ brief; without leave of this court is incompetent and it is hereby struck out.
At this juncture, having severed that wheat, from the chaff, I shall now proceed to consider the real issue in this appeal. From the issues for determination formulated by the parties, the central issue in this appeal is whether the present appellants where served with the originating processes and the requisite hearing notices.
First and foremost, the issue of service is very fundamental to the jurisdiction and competence of the court. Failure to serve court processes or hearing notice on a party when such notice is required renders the proceedings conducted thereafter a nullity. See: John A.S.C. Ltd vs. Mfon (2007) 4 WRN 173 at 187. Onwuka vs. Omolewa (2001) 28 WRN 89; Odutola vs. Kayode (1994) 2 NWLR(Pt. 324) 1 at 15.
The maxim “audi alterem partem” which is the obligation to hear the other side of a dispute or the right of party in a dispute to be heard, is so, basic and fundamental a principle in our adjudicatory system in the determination of dispute that it cannot be compromised on any grounds. Failure to serve process where services of process is required is a failure which goes to the root of the jurisdiction of the court. Any proceeding in such a case is a nullity. See: Teno Org. Ltd vs. Adisa (2005) 10 NWLR (Pt. 933) 346; Sken Consult vs. Ukey (1981) NSCCI, Odija vs. Okwudima (1969) NMLR 121.
Bearing the above in mind, I have gone through the record of proceedings in this appeal to confirm whether indeed the appellants’ allegation of non-service is true or not.
The kernel of the appellants’ case is that not having been served with the write of summons and statement of Claim of the plaintiff nor served notice of hearing the proceedings is incompetent and ought to be vitiated.
However a calm and careful examination of the record, reveal that allegations of the appellants are not true. The salient and undisputed facts of the instant case on appeal, as gleaned from the record, are as follows:
1. The respondents who were the plaintiffs at the trial court instituted proceedings leading to this appeal in a representative capacity against Bassey Orok Amika & 9 others, who were the original defendants at the trial court, on behalf of themselves and as representating the Mma Amika Utuk family. See the enrolled Order of the trial court at page is of the record, signed by Hon. Justice E. E. Ita, the presiding Judge on 23/11/77.
2. Bassey Orok Amika was the head of Mma Amika Utuk family at the time of the institution of the suit and was the father of present appellants, Ita Bassey Orok Amika and Edet Bassey Orok Amika.
3. Upon a motion on notice dated 21/5/81 and filed the same day, the respondents were granted leave to amend their statement of claim and plan on 22/5/81 and the defendants were given leave to file a consequential amended statement of defence if necessary. See page 110 lines 8-14 of the record. On 27/4/87, the defendants filed an amended statement of defence.
An application for further amendment of the statement of claim was granted by the court on 6/7/94. On the same day Mr. Efa, counsel for the defendant asked for 14 days to file their amended statement of defence. See page 48 lines 24-33. Apparently, the defendant did not find it necessary to further amend their statement of defence.
Pursuant to a motion on notice filed by the respondents (Plaintiffs, counsel, Mr. Edem Efiom Ekon. Honourable Justice E. E. Arikpo struck out the names of the original 1st, 2nd, 4th – 10 defendants as parties to the substantive suit on the 1/6/92 and substituted Ita Bassey Orok Amika and Edet Bassey Orok Amika in the 1st and 2nd defendants respectively. See pages 69-75 and 143 of the record.
Following the order for substitution of the appellants as 1st and 2nd defendants, the bailiff of the trial court effected personal service of the amended statement of defence upon 1st and 2nd appellants respectively at the State Forestry Department, Calabar on 30/6/92 and on Edet Joe Amika, at No. 125 Goldie Street, Calabar on 30/6/1992. The affidavit of service are exhibited at pages 11, 12, 13 and 14 of the additional record. From the foregoing, it is crystal clear that the present appellant were duly served with the court processes and hearing notices as required by law. This is undeniable.
There is enough material in the record of proceedings that both appellants attended the court after they were duly substituted. For instance, the 1st appellant appeared before the trial court on the 6/7/92 and he informed the court that he would prefer to be addressed as Etim Bassey Orok Amika. See page 143 of the record. He appeared again on 9/4/2002. See page 171 of the record.
The 2nd appellant, Edet Bassey Orok Amika also appeared before the court on the 2/2/93 and on that day, the 8th respondent Maurice Paul Awo testified before the trial court as PW1, see page 144 of the record.
Now, if the appellants were not served with hearing notices and other processes, how did they know of the case? And why did they appear before the trial court. Their presences in court clearly indicate, establish and prove that they were served.
The learned counsel for the appellant, Mr. David Obande, in a lukewarm manner, tried to discredit the affidavit of service in the additional record. In the first place, it will take more then mere submission in the appellants’ brief to rebut the affidavit of service, exhibited in pages 11-13 of the additional record. Under the rules there are 3 ways of proving service, and they are:
(a) By certificate of service signed by the process server.
(b) Proof of service by affidavit.
(c) The appearance in court of the party served as ordered in the process or on the return date stated in it or on the hearing notice attached thereto.
Each of these notices of service however affords a prima facie evidence of service only so that although a court can properly act on any of them, a defendant is not precluded from rebutting service by oral evidence when there was in fact none. In the instant case on appeal, the appellants failed to disprove that they were served. See Katsina L. A. vs. Makudawa (1971) NMLR 100; Muhammed vs. Mustapha(1993) 5 MWLR (Pt. 292) 222 at 233.
The question whether a process is served or not is a question of fact of which oral evidence can be given. There is no credible oral evidence relied upon by the appellant to disprove service in this instant case on appeal. There are affidavits of service, exhibited at page 11-13 of the additional record which have not been disproved, challenged, controverted or contradicted. Moreover, the 1st and 2nd appellants appeared in court in person. The physical appearance of the 1st and 2nd appellants before the trial court knocks the bottom off the allegation of the appellants on this point.
In Mohammed vs. Mustapha (supra), Mustapher JCA (as he then was) at page 234 put the matter succinctly when he said that:
“The best evidence for the proof of service of court process is either the appearance of the defendant in court or oral evidence by the bailiff and other witnesses who were present when the service was effected.”
In the instant case on appeal, the appellants have been shown to have appeared at the trial at different times. The appearances before the trial court are the best evidence of the proof of service.
It is significant to note that a proof of service in the record of a court is conclusive proof that a party in the proceedings has been served with the court processes. Where in a proceeding the question arises whether or not a process of court has been served on a party in the proceedings, it will be a strange thing for the court to ignore the proof of service in its own record in the proceedings and hold that such process has not been served. An affidavit of service of a court process is normally non contentious. It is required to be put on record for information of the court and the parties as to fact and date of service in the proceedings. See Nigerian Navy vs. Garrick (2006) 4 NWLR (Pt. 969) 69 at 101-102 and AG Anambra State vs. Okeke (2002) 12 NWLR (Pt. 782) 575. The position of the law was eloquently stated by the erudite jurist, Edozie JSC, in Ndayako vs. Dantoro (2004) 13 NWLR (Pt. 889) 187 at 220 where he said:
“Under normal circumstances, the best evidence of service is by affidavit of service. In the instant case, it was not disputed that there was an affidavit of service in the court’s file. That document forms part of the court’s record which the court could look at to confirm that there was proof of service even if it was not tendered as an exhibit………………….
See also Agbaisi vs. Ebikorefe (1997) 4 NWLR (Pt. 502) 630, UTC (Nig) Ltd vs. Pamotei 0989)2 NWLR (Pt 103)244.
It is observed and noted that the appellants did not challenge the record of appeal in accordance with the law. Parties as well as the court are bound by the record of proceedings as compiled and forwarded to the appellate court and handwritten proceeding of the particular day and serve it on the Judge for his reaction to the facts therein and to be contrasted with that of the lower court by the appellate court. See: Mba vs. Nwosu (2008) 3 NWLR (Pt. 1074) 329 at 388. Records of proceedings bind the parties and the court until the contrary is proved. This is because there is the presumption of its genuineness, although this is rebuttable. See Aebareh vs. Mimra (2008) 2 NWLR (Pt. 1071) 378 at 411.
Despite, the spurious allegation made by the appellant in paragraphs 48-53 of the appellants’ brief, the additional record of the trial court was not challenged by the appellant, therefore the presumption of genuineness, correctness and bindingness of the additional record is unaffected.
In respect of the affidavit of service at pages 11-13 of the additional record, I observed that the appellant did not file any counter-affidavit challenging the affidavit of service. In the circumstances, the contention of the appellant touching on the affidavit of service is conjectural, speculative and misconceived.
A court is entitled to look at the contents of its file or records and refer to it in consideration of any matter before it. See Ndayaka vs. Dantoro (supra); Agbaisi vs. Ebikorefe (supra); Aphareh vs. Mimra (supra).
The question whether a process, writ or notice is served or not is a question of fact of which oral evidence can be given. See Mohammed vs. Mustapha (supra) at page 232-233.
Furthermore, it is a settled principle of law that in a representative action, the named parties or accredited representatives, who are dominus litis, are not the only parties to the action. The others whom they represent are also parties to the action and they shall be bound by the eventual decision of the court even though their names do not appear in the title of the proceedings.
Moreover, where a person is substituted for the original party by the court for arty reason, the effect is to bring him in as at the date the original writ of summons was issued. In Daniyan & Anor vs. Iyagin (2002) 7 NWLR (Pt. 766) 346 at 375; Oduyemi JCA had this to say:
“In a representative action, it is not only the plaintiff who is a party to the action. The others who are not named but whom the named plaintiff purports to represent are also parties to the action and they are parties because they are so bound by the action. Otapo vs. Sumonu (1987) 2 NWLR (Pt. 58) 587; Dokubo vs. Bob-Manuel (1967) 1 ALL NLR 113 referred to…..
The effect of substituting one of the persons whom a plaintiff represented for the original plaintiff by the court for any reason is to bring him in as at the date of the original writ of summons.”
Where parties by conduct voluntarily opt out of trial when they have adequate information of the hearing date and venue of the trial, they cannot turn around to complain of want of fair hearing. See: ANCE Ltd. vs. Udoh (supra). It follows from the foregoing that the issues raised in this regard are devoid of substance and therefore of no moment.
The above points adumbrated in this judgment sufficiently dispose the main issue for determination formulated by the parties. However, there remains the issue of the appearance of Mr. Richard Efa for the appellants at the court below. The appellants contended forcefully at paragraph 34 (1) page 14 of the appellants’ brief that:
“Richard Efa did not appear for the appellants except probably for the party taunted as Edet Joe Amika who was 3rd defendant from the inception of the case in 1977….”
The above comment is mischievous, misleading and a gross misrepresentation of the facts, having regard to the contents of the record of proceedings.
A careful perusal of the records reveal at page 145, that Mr. Richard Efa first came to this case on the 29/6/93. Mr. Efa on the 28/10/93 informed the court at page 145, lines 19-23 of the record that:
…I humbly apply to be released from further appearance for defendants in that I have not been properly briefed. They do not keep my appointment with me. My learned senior Obong Ukpapa who was to lead me has never shown up in court. I wrote to him for the case file, but he has not done so.”
Joe Amika, the 3rd defendant stated at page 145 line 24 of the record that:
“I will go and see my counsel.”
Also at page 167, lines 1-20 of the record, Mr. Richard Efa as counsel for the defence called the 3rd defendant to the stand to testify for the defendants. This was on the 31/7/2001 and no one objected.
Thereafter, Mr. Richard Efa appeared for the 1st and 2nd appellants and the 3rd defendant in court until the 6/2/03 when the trial Judge delivered judgment in the case. See page 201, line 12 of the record. It is worthy of note that the 1st, 2nd appellants and the 3rd defendant never for once raised any objection to the appearance of Mr. Richard Efa as their counsel. It is rather too late in the day, for counsel to attempt to disown Mr. Richard Efa. On the contrary, I hold firmly that from the printed record in this appeal, Mr. Richard Efa appeared as counsel for the appellants and the 3rd defendant at the trial before the court below.
Secondly, when counsel appears in court and states that he is instructed, the court will not inquire into the authority to appear and he need not apply in writing for leave to appear. See Pam vs. ANPP (2008) 4 NWLR (Pt. 1077) 219 at 251. Tukur vs. Government of Gongola State (1988) 1 NWLR (Pt. 68); Bobmanuel vs. Briggs (1995) 7 NWLR (Pt. 409) 537; Adewunmi vs. Plastex (Nig) Ltd. (1986) 3 NWLR (Pt. 32) 767.
Also, in FRN vs. Adewunmi (2007) 10 NWLR (Pt.1042) 399 at 424; Kalgo J.S.C. In his usual erudity stated that:
When or where a counsel announces his appearance for a party, it is not for the court to start an enquiry into his authority and the court never does so. Once a counsel appears in a case and announces his appearance, the court assumes that he has the authority of his client for the conduct of the case once he is instructed and he announces his appearance in court and he is so instructed, it raises a presumption of this authority and he assumes full control of the conduct of his client’s case.”
Suffice it to say that all through the trial at the court below, the appellants did not object to the appearance and the conduct of their case by Mr. Richard Efa. The contention of the appellants is a mere straw in the wind that must go with wind.
I also observed that the appellants, both in the sole ground of appeal subscribed in their notice of appeal at page 202 of record and in the lone issue formulated for determination in their brief, never questioned or challenged the appearance of Mr. Richard Efa for the 1st and 2nd appellants. The issue of appearance of Mr. Richard Efa is an issue at large. Ordinarily all the arguments proferred by learned counsel on the issue go to no issue and the issue should be discountenanced. See Onyekweli vs. Ugwu & Ors. (2008) 15 NWLR (Pt.1111) 545 at 556 and M.B.N Plc vs. Nwobodo (2005) 14 NWLR (Pt.945) 379.
I must also comment on the appellants attack on the 3rd defendant. The appellant at page 34(1), page 14 of their brief stated that:
“Richard Efa did not appear for appellants except probably for the party taunted as Edet Joe Amika who was 3rd defendant from the inception of their case in 1977……………………
Apparently, the appellants shot themselves on the foot when they admitted that the 3rd defendant had been in the case from its inception in 1977. it is glaringly clear from the record that the 3rd defendant is the only surviving original defendant in this case and he attended the tiral court from the inception until judgment. The appellants comment on the 3rd defendant is false, unjustified and misleading. It has no substance whatsoever.
Lastly, the appellants’ counsel in their brief at page 13 paragraph 33 made a veiled remark that the 1st and 2nd appellants were joined in this suit by the court below. It is very clear as crystal that the 1st and 2nd appellants were not joined in the suit rather they were substituted for the original 1st, 2nd, 4th – 10th defendants, who were dead and their names struck out. See page 143, lines 10-16 of the record. In the result, I find no merit in this appeal and it is hereby dismissed.
Accordingly, this appeal be and it is hereby dismissed, the judgment of Hon. Justice Michael Edem in Suit No. C/96/77 delivered on 6/3/03 is hereby affirmed. Cost of N20,000 is awarded to the respondents.
Appeal dismissed.
K. B. AKAAHS, J.C.A.: I agree entirely with the judgment of my learned brother, Omokri JCA. The records, particularly the supplementary records have shown conclusively that the appellants were served with the originating processes as well as the hearing notice. The misunderstanding leading to the application by Richard Efa to withdraw from the matter on 28/10/93 must have been settled and this enabled Richard Efa of counsel to lead Joe Amika 3rd Defendant in evidence on 31/7/2001 and his continued appearance right up to when judgment was delivered. The 3rd defendant was one of the original defendants when the suit started in 1977 and the 1st & 2nd appellants were later brought in to substitute 1st, 2nd, 4th – 10th defendants who were reported dead. So the appellants as well as the 3rd defendant represented the same interest at the lower court. Since none of the appellants raised objection to the 3rd defendant being made a party at the lower court, the appearance of Richard Efa to represent him must be taken that all the defendants were being defended by the same counsel who were defending the case in a representative capacity. There is therefore no merit in the appeal and it is accordingly dismissed.
I endorse the dismissal of the appeal with costs assessed at N20,000.00 in favour of Respondent.
NWALI SYLVESTER NGWUTA, J.C.A.: I have read in draft the judgment just delivered by my Learned Brother Omokri JCA. I agree with his reasoning and conclusion.
I think it borders on mischief for the Appellant to argue, as they did, that Mr. Richard Efa did not appear for them at the Lower Court or that the 1st and 2nd Appellants were joined in the suit by the trial. The difference between joinder and substitution is very clear.
For the above and the fuller reasons in the lead judgment I also dismiss the appeal is devoid of merit.
I adopt the consequential orders including order for costs.
Appearances
David ObandeFor Appellant
AND
E. O. E. EkongFor Respondent
