MR. EMMANUEL OLUYEDE V. CHIEF MRS. OLUREMI ADEYANJU
(2010)LCN/3971(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of July, 2010
CA/IL/13/2009
RATIO
BRIEF OF ARGUMENT: EFFECT OF THE FAILURE OF RESPONDENT TO FILE A BRIEF OF ARGUMENT IN AN APPEAL
By virtue of Order 17 Rule 10 of the Court of Appeal Rules, 2007, where a respondent fails to file his brief, he will not be heard on oral arguments. This provision is the same as Order 6 Rule 10 of the old rules of 2002 and has been interpreted to mean that such a negligent respondent will not be heard to urge on any point on the appeal. He has lost his right to be heard during the oral argument of the appeal – subject to the exception of where he obtains the leave of the court to be heard – see AGBAKA VS. AMAD1 (1998) 11 NWLR (PT.572) 16; MANAGEMENT ENTERPRISES LTD VS. OTUSANYA (1987) 2 NWLR (PT.55) 179; OYEYIPO VS. OYINLOYE (1987) 1 NWLR (PT.50)356; DAHAT VS. DASHE (1997) 12 NWLR (PT. 531) 46; and OKELOLA VS. ADELEKE (2004) 13 NWLR (PT.890)307.” Applying the above rule to the present case therefore, I will regard or treat the appeal as having been heard and argued on the appellant’s brief alone. This failure of the respondent to file the respondent’s brief means that the respondent is deemed to have admitted the truth of all and everything said or stated in the appellant’s brief, see LAGRICONS COMPANY LTD VS. UBN LTD (1996) 4 NWLR (PT.44) 185 and UMARU VS. PAM (2010) 2 NWLR (PT.1178) 404 AT P.417. PER DALHATU ADAMU (OFR), J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
IGNATUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CENTUS CHIMA NWEZE Justice of The Court of Appeal of Nigeria
Between
MR. EMMANUEL OLUYEDE Appellant(s)
AND
CHIEF MRS. OLUREMI ADEYANJU Respondent(s)
DALHATU ADAMU (OFR), J.C.A. (Delivering the leading Judgment): This appeal was heard on the appellant’s brief alone. On the application of the appellant, praying that the appeal be heard on his brief alone since the respondent has failed to file her own brief after she was served with the appellant’s brief. The application was granted on 9/1/2010. The appeal was heard initially on 10/3/2010. It was re-heard again on 21/6/2010 and judgment was reserved.
Under the appellant’s brief dated 16/3/2009 and filed on the same date, the appellant formulated the following two (2) issues for determination.
ISSUES IN THE APPEAL
A. Whether it is legally permissible to cause to issue, file and serve the writ of summons and statement of claim outside jurisdiction without leave of court having first being sought, had and obtained.
B. Whether order for substituted service can be made without attempt at personal service.”
Under issue ‘A’, the appellant argues that it is not legally permissible to issue, file and serve the writ of summons and statement of claim or any court process at all on the appellant that resides outside jurisdiction of the Honourable Court without the leave of the Honourable Court having first been sought, had and obtained. Such an application for leave is made ex-parte before effecting service on the defendant/appellant see Order 5 Rules 6 and 14 of Ondo State High Court Civil Procedure Rules (applicable to Ekiti State). These provisions have been reproduced in the brief.
However, despite the above rules, the appellant stated at page 5 in Article (iii) of his brief as follows:
“(iii) On 14th February 2007, the lower court granted respondent’s application for leave to issue and serve the writ of summons and statement of claim and other court processes on the appellant at 2B14, Ilepa Street Ikare-Akoko a place outside the jurisdiction of the Honourable Court.
(iv) By the order of the lower court of 14th February 2007, it is expected that the respondent would file his writ of summons and statement of claim after 14th February 2007 and not 20th December 2006…”
See URUME VS. AGBORO (2001) 11 NWFR (PT. 723) 206 AT 220; DERBY POOLS LTD VS. OCHEME (1991) 7 NWLR (PT.203) 323 AT 335 where the court held as follows:
“If appellant is to be served outside jurisdiction of Benue State High Court, it follows that leave of the court below ought to have been sought and obtained to issue and served the writ of summons outside the jurisdiction. Failure to do this is a fatal delect to this case.”
See also UBN PLC VS. SOGUNRO (2006) 16 NWLR (PT.1006) 504 AT 524. All cited by the appellant in support of his above submission. The appellant then argues that there is no valid authentic, genuine, lawful and regular writ of summons or statement of claim in the suit herein since leave to issue and serve outside jurisdiction was not first sought, had and obtained. The condition precedent had been side tracked in this case or sidelined – see PORBENI VS. P.F. & INVESTMENT CO. (2002) 3 NWLR (PT.754) 452 AT 468.
This explains why the appellant made a conditional appearance at the lower court on 31/7/2007 and challenged the writ of summons and the statement of claim to be set aside. The conditional appearance was on 17/4/2007.
It is stated in the brief that the parties are ad-idem on the fact that the respondent did not first seek the leave of the court before the issuance and service of the writ of summons and the statement of claim outside jurisdiction. The respondent did not also seek for the deeming order of the processes she unilaterally caused to be issued in her ex-parte application of 20/12/2006. In any case a prayer not asked for cannot be granted – see CHIDOBI VS. UJIEZE (1994) 2 NWLR (PT.328) 554 AT 566 cited by the appellant. It is argued that since the respondent obtained leave to issue and serve the writ of summons and statement of claim, on 14/2/2007 (about 56 days after filing of her writ and statement of claim without seeking leave to issue, the said writ and statement of claim are both defective and a nullity in law and they should be set aside by this court. The appellant finally urges this court to declare them so and to resolve issue ‘A’ in his favour and against the respondent.
I will proceed to set up the 2nd issue (issue ‘B’) as submitted by the appellant because it is similar to the 1st issue which I have set up above. Thus, I will deal with the two issues of the appellant together. Issue B is whether an order for substituted service can be made without attempt at personal service first had. It is the appellant’s submission that the learned trial judge made an order by enrolment of order of 14/2/2007 – whereas the affidavit in support of the ex-parte motion there is no any reason given why the ex-parte order was sought. The only reason given by the learned trial judge was that “it appears that it may be difficult to effect service on the defendant personally”. There was no attempt at personal service from the record. It is submitted that an order for substituted service can only be validly and legally made when attempt at personal service has failed. Although it is conceded that the learned trial judge had a discretion to make an order for substituted service that is said to be not automatic but only possible when it is made known to the court that personal service cannot be effected that the judge can exercise his discretion to order for substituted service. Thus, there must be enough evidence for the court to act upon. This evidence is not available in the present case but the learned trial judge solely on his own speculated, invented and supplied the facts and the evidence necessary for his order of substituted service. See the cases of ACB VS. LOSADA NIGERIAN LTD. (1992) 2 NWLR (PT.225) 572 AT 588; and MADUBIKE VS. MADUBIKE (2001) 1 NWLR (PT.693) 472 AT 481 cited in support of the above submission. It is contended that it is not usual for a court to grant an order to serve a process outside jurisdiction as well as to grant an order for a substituted service concurrently – see the case of KIDA VS. OGUNMOLA (2006) ALL FWLR (PT.227) 402 AT 411. The appellant then finally urges this court to resolve his 2nd issue in his favour and against the respondent.
I have considered the above submissions of the learned counsel for the appellant. This appeal has been heard on the appellant’s brief alone. The respondent has failed to file any brief of argument. By virtue of Order 17 Rule 10 of the Court of Appeal Rules, 2007, where a respondent fails to file his brief, he will not be heard on oral arguments. This provision is the same as Order 6 Rule 10 of the old rules of 2002 and has been interpreted to mean that such a negligent respondent will not be heard to urge on any point on the appeal. He has lost his right to be heard during the oral argument of the appeal – subject to the exception of where he obtains the leave of the court to be heard – see AGBAKA VS. AMAD1 (1998) 11 NWLR (PT.572) 16; MANAGEMENT ENTERPRISES LTD VS. OTUSANYA (1987) 2 NWLR (PT.55) 179; OYEYIPO VS. OYINLOYE (1987) 1 NWLR (PT.50)356; DAHAT VS. DASHE (1997) 12 NWLR (PT. 531) 46; and OKELOLA VS. ADELEKE (2004) 13 NWLR (PT.890)307.
Applying the above rule to the present case therefore, I will regard or treat the appeal as having been heard and argued on the appellant’s brief alone. This failure of the respondent to file the respondent’s brief means that the respondent is deemed to have admitted the truth of all and everything said or stated in the appellant’s brief, see LAGRICONS COMPANY LTD VS. UBN LTD (1996) 4 NWLR (PT.44) 185 and UMARU VS. PAM (2010) 2 NWLR (PT.1178) 404 AT P.417. Consequently I will hereby resolve both the two issues (A and B) of the appellant in favour of the said appellant and against the respondent. The two reliefs sought by the said appellant in their brief are hereby granted. The appeal is allowed and the decision of the lower court dated 11/3/2008 is hereby set aside and the Suit No. HIS 3-06 or HIS 3/2008 is hereby struck out. I award no order on costs.
IGNATIUS IGWE AGUBE J.C.A.: I have read before now the lead judgment of my learned brother ADAMU (OFR), (PJ), in this appeal. I agree with his reasoning and the conclusion he arrived at by allowing the appeal and striking out the decision of the Lower Court in the suit No. HIS/3/06 or HIS/3/2008 which I hereby adopt as mine. I also agree with my learned brother on the order as to costs.
CHIMA CENTUS NWEZE J.C.A.: I agree.
Appearances
TEMITOPE KOLAWOLEFor Appellant
AND
For Respondent
