AIRTEL NIGERIA LIMITED v. CHIEF LADE OGUNSAKIN
(2018)LCN/12238(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/68/2013(R)
RATIO
APPEAL: WHEN AN APPEAL IS STRUCK OUT
“When an appeal is struck out, it could still be resuscitated by the Appellant. A dismissal of an appeal brings the matter to an end and the particular relief dies. See the cases of O.B.M. Ltd V. M.B.A.S Ltd (2005) 4 MJSC 1, OKO V. Igweshi (1997) 4 NWLR (Pt. 497) 48 and Rankin Udo & Ors V. Mbian Obot Ors (1989) 1 NWLR (pt 95) 59 at 72.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCEDURE: WHETHER ISSUE OF SERVICE FOR COURT PROCESS IS FUNDAMENTAL
“The issue of service of a hearing notice on the party intimating him of the hearing date is very fundamental to administration of justice and its importance cannot be overemphasized as it is that service of the hearing notice that confers on the Court the jurisdiction to entertain the matter. See Agena V. Katseen (1998) 3 NWLR (Pt. 543) 560, Third Eye Communication Ltd V. Ishola (1999) 2 NWLR (Pt. 592) 549, Sken Consult (Nig.) Ltd V. Ukey (2001) 49 WRN 63 and Malak Rex V. Eyo Inang (2003) 23 WRN 22.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCDURE: STRIKING OUT/ DISMISSAL OF COURT MATTER
“There is a distinction between a striking out and a dismissal of a matter. The dismissal of an action operates as a bar to prevent the plaintiff from instituting a fresh action on the same matter. On the other hand, an order striking out an action does not preclude the plaintiff from filing a fresh action on the same matter. See the decision of this Court in Y. S. G MOTORS LTD V. OKONKWO. By Order of the Rules of this Court where the Appellant fails to file his brief within the time provided for in the Rules, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. Does the mere expression or use of “dismissal” in the rule operate as a bar to prevent relisting? The answer to this poser can be found in the holding of the Supreme Court in the case of MOHAMMED V. OLAWUNMI(1993) 4 NWLR Pt. 288, 384 AT 396-397.” PER PATRICIA AJUMA MAHMOUD J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
AIRTEL NIGERIA LIMITED Appellant(s)
AND
CHIEF LADE OGUNSAKIN
(for himself and on behalf of the Ogunsakin family of Igbara-Oke) Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling):
This is a motion on notice dated and filed on the 15th June, 2016, the applicant prayed the Court as follows:
1. An Order of this Honourable Court relisting this Appeal struck out on the 20th of January, 2016.
2. And for such further or other Orders as this Honourable Court may deem fit to make in the circumstances.
The application was predicated on two grounds. It was supported by a 13-paragraphed affidavit and a seven (7) paragraph Further affidavit dated and filed on the 23rd October, 2017. The Respondent, in opposing the application, filed on 11th January, 2017 an 11-paragraph counter affidavit. Both parties Exhibited the Order of this Court dated 20th January, 2016.
On 12th January, 2017, this Court Ordered the parties to file written addresses. The applicant’s written address dated 28th February, 2017 was filed on the 1st March, 2017 and deemed properly filed and served on the 24th October, 2017. The Respondent’s written address dated 27th February, 2017 was filed on the 28th February, 2017 and was deemed properly filed and served on the 24th October, 2017.
At the hearing of the application, Learned Counsel for the applicant adopted the applicant’s written address as representing his arguments for the application, he urged the Court to grant it. The Respondent on his part, through his Counsel, adopted the Respondent’s written address as his submission against the application and urged this Court to dismiss the application.
The applicant’s Counsel, in his written address, submitted the following lone issue for determination, to wit;
“Whether the applicant is entitled to the prayer sought.”
The Respondent’s Counsel also submitted the following issue for determination:
“Whether the Order of your Lordship delivered on 20th day of January, 2016 is binding, effective and has completely determined this Appeal.”
A close examination of the two issues formulated by the parties is to the effect that the two issues are similar in substance. I shall therefore determine this application on the issue formulated by the applicant.
Arguing the lone issue, the applicant’s Counsel submitted that service of process on the parties is a pre-condition to the exercise of jurisdiction by the Court and where there is no service or there is a procedural fault in service, the subsequent proceedings are a nullity ab initio. He also submitted that any proceedings embarked upon without required service of process will amount to nothing. It will be service in futility. He argued that failure to serve on the applicant the Respondent?s application is fatal to this appeal. He relied on the case of IHEDIOHA V. OKOROCHA (2015) 9 SCM P. 114 – 115 Pr. H – I, A – B.
The Learned Counsel also argued that the service of hearing notice by contacting an unknown phone number (07031548185) informing the recipient that the matter was coming up on the 20th of January, 2016 is non service, as no Counsel in the firm of Prime Solicitors owns such number. The Court’s Bailiff who contacted different person instead of the applicant’s Counsel has not denied that fact. He submitted that he has already filed an Appellant’s Brief of argument and an application to regularize same before he discovered that the appeal was struck out, he urged this Court to relist the appeal struck out in the interest of justice.
The Learned Counsel for the Respondent contended that Order 18 Rule 10 of the Court of Appeal Rules 2011 under which the appeal was struck out does not provide power to relist same. He argued that the applicant’s contention that he was not served with hearing notice of 20th January, 2016 is frivolous, unfounded and has no iota of truth in the light of the overwhelming evidence on the Exhibit attached to the Respondent’s Counter affidavit.
He submitted that this Court observed that the applicant’s Counsel was duly contacted on Telephone No. 07031548185. Therefore, there was no doubt that he was not only contacted but merely wanted this Court to vacate its Order. He supported his contention with a Supreme Court decision in the case of EKPETO V. WANOGHO (2005) ALL FWLR (Pt. 245) 1191 @ 1203 – 1204 G – A.
He urged us to refuse the application of 15th June, 2016 and declare that this Court has become Functus officio in respect of the appeal.
RESOLUTION OF THE ISSUE
I have carefully considered the arguments for and against this application. It is obvious from the Exhibit attached to the counter affidavit and applicant’s further affidavit that appeal Number CA/AK/68/2013 was struck out on the 20th January, 2016 for want of diligent prosecution. Though the Respondent’s Counsel vehemently contended that the appeal was struck out under Order 18 Rule 10 of Court of Appeal Rules 2011 (now Order 19 Rule 10) which does not confer on this Court the power to relist same, with due respect to the Learned Counsel to the Respondent, the law is settled and therefore trite that where a Court relies on its inherent powers to strike out a case because its proponent had become lethargic or nonchalant, it is erroneous to assume that such an Order amounts to dismissal on the merit.
When an appeal is struck out, it could still be resuscitated by the Appellant. A dismissal of an appeal brings the matter to an end and the particular relief dies. See the cases of O.B.M. Ltd V. M.B.A.S Ltd (2005) 4 MJSC 1, OKO V. Igweshi (1997) 4 NWLR (Pt. 497) 48 and Rankin Udo & Ors V. Mbian Obot Ors (1989) 1 NWLR (pt 95) 59 at 72.
The applicant predicated his application on two grounds namely:
1. That the applicant’s Counsel was not served the Respondent’s application.
2. The applicant’s Counsel was not served any hearing notice of the said proceedings of 20th January, 2016 when the case was struck out.
It is obvious that the applicant has constructively dispensed with ground 1 of the application, this is clear from the deposition in his further affidavit sworn in by one Abayomi Idowu, vide paragraph 3 there in which I reproduce here under:
3. That the Respondent filed an application to dismiss this appeal on the 4th of November, 2015 and same was served on the Appellant before the hearing of the application.
It is instructive to note that the main contention of the applicant is that he was not served with hearing notice of this Court’s proceedings held on the 20th January, 2016. Whilst this Court relied on the information from the Bailiff to strike out the matter for want of diligent prosecution, that the Bailiff severally called a telephone number 07031548185 without response he thereafter sent a message informing the Respondent’s Counsel on the hearing date. The applicant, in his supporting affidavit deposed to by Abayomi Idowu, under paragraph 4 b and c deposed as follows:
4 (b). That the hearing notice of the said date was mistakenly sent to another Counsel via message and not the applicant’s Counsel.
(c) That neither the applicant nor ourselves as Counsel was served with hearing notice for the proceedings of 20th January, 2016 before this honourable Court, neither were we informed by any other means of the said proceedings.
The above depositions were not specifically controverted or denied by the Respondent’s counter affidavit. The law is therefore settled on this that failure to notify a party of the date for hearing of a matter renders the proceedings null and void as the Court lacks jurisdiction to entertain the matter.
The issue of service of a hearing notice on the party intimating him of the hearing date is very fundamental to administration of justice and its importance cannot be overemphasized as it is that service of the hearing notice that confers on the Court the jurisdiction to entertain the matter. See Agena V. Katseen (1998) 3 NWLR (Pt. 543) 560, Third Eye Communication Ltd V. Ishola (1999) 2 NWLR (Pt. 592) 549, Sken Consult (Nig.) Ltd V. Ukey (2001) 49 WRN 63 and Malak Rex V. Eyo Inang (2003) 23 WRN 22.
The applicant, having shown from his affidavit that he was not served with the hearing notice of the proceedings held on the 20th January, 2016, is entitled to have the Order set aside because where an Order has been made against a person in his absence without notifying him of such proceedings, he has the right to have the Order set aside on the ground that a condition precedent to the Order taking effect has not been fulfilled. See Aster V. Gachi (1997) 6 NWLR (Pt. 510) 609.
?
I am not unmindful of the fact that the deponent of the counter Affidavit had not named/stated who that other Counsel that was not the Applicant’s Counsel, that was mistakenly served the hearing Notice by Message on the said Telephone number was; presupposing that no burden would have shifted to the Respondent to, by a further Reply or Further Counter Affidavit show that the ‘disowned’ Telephone Number was indeed that of the Appellant/Applicant’s Counsel.
In the circumstances of the absence of a counter evidence by the Affidavit of the Bailiff that he was not mistaken on the phone number and its ownership which was a fact the Respondent could rely on, that evidence not being impossible to lead, I will exercise the discretion to relist the Appeal No. CA/AK/68/2013 earlier struck out in the circumstances of this application; as the Applicant has also shown by the filing of the Records of Appeal, the Appellant’s Brief of Argument and the Motion to regularize same that he is desirous of prosecuting his appeal timeously.
As a general rule, every Court of record has inherent jurisdiction on application in appropriate cases and circumstances to set aside its Judgment or decision where the Judgment or decision is null and void ab initio or where there was a fundamental defect in the proceedings which vitiates and rendered same incompetent and invalid. See Alhaji Taofeek Alao Vs ACB Ltd (2000) 2 SCNQR page 1087 @ 1071 (2000) 9 NWLR (Pt. 672) 264; Salami Odofin & Ors Vs Abraham Olabanji & Anor (1996) 3 NWLR (Pt 435) 126; Sken Consult Nig. Ltd Vs Ukey (1981) 1 SC 6.
In the circumstances of the striking out of the Appeal, it is ordered that the appeal be relisted to the cause list of this Court for expeditious hearing, in the interest of Justice as the order striking out the appeal on the 20th day of January, 2016 though binding and effective until set aside had not completely determined the Appeal on its merit as postulated in the Respondent’s Issue. It is set aside for the circumstances shown.
The motion on notice dated and filed on the 15th June, 2016 is hereby granted as prayed.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the Ruling just delivered by my learned brother, Mohammed Ambi-Usi Danjuma, J.C.A. I am in agreement with his reasoning and final conclusions.
I also adopt the orders contained in the lead Ruling and adopt them as mine.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the privilege of reading before now in draft the Ruling just delivered by my learned brother, MOHAMMED A. DANJUMA, JCA relisting this appeal which was struck out on the 20th day of January, 2016.
The respondent’s counsel had argued quite heatedly that a striking out of a matter under Order 19 (10) of Rules of Court, 2016 (formerly Order 18(10) of the 2011 Rules of Court) under which the application was brought robs the Court the power to relist same.
There is a distinction between a striking out and a dismissal of a matter. The dismissal of an action operates as a bar to prevent the plaintiff from instituting a fresh action on the same matter. On the other hand, an order striking out an action does not preclude the plaintiff from filing a fresh action on the same matter. See the decision of this Court in Y. S. G MOTORS LTD V. OKONKWO.
By Order of the Rules of this Court where the Appellant fails to file his brief within the time provided for in the Rules, the Respondent may apply to the Court for the appeal to be dismissed for want of prosecution. Does the mere expression or use of “dismissal” in the rule operate as a bar to prevent relisting? The answer to this poser can be found in the holding of the Supreme Court in the case of MOHAMMED V. OLAWUNMI(1993) 4 NWLR Pt. 288, 384 AT 396-397.
Noted copiously with approval by this Court in the case of P. W. RESOURCES LTD & ANOR V. JAMES KPORAH & ANOR (2010) LPELR – 4825. This is to the effect that when an application is heard on its merits and refused, it is dismissed. If an application fails to comply with the Rules of Court as in this case it will be struck out. In other words, the effect is not so much in the expression or the word used but in the action or activity. Except of course where the Rules expressly prohibits an order for relisting a matter which has been struck out.
An Order striking out an appeal may for some purposes have the same effect as an Order dismissing it. But at all times, it is only a decision on the merits that will preclude a relisting of a matter for a subsequent decision on the merits. This means if a matter has not been heard on the merits and dismissed as in the instant case such a matter can be reopened by an application such as has been brought. See the Supreme Court case of LAFFERI NIG. LTD & ANOR V. NAL MERCHANT BANK PLC & ANOR (2015) LPELR – 24726.
It is curious that while the Respondent’s Counsel vehemently opposed this application, his opposition is hinged mainly on the fact that the applicant’s Counsel was aware of this date. He never showed the Court how this application will overreach his client.
Without any such reason which is substantial and also showing he cannot be adequately compensated in costs, the Court is often enjoined to grant this kind of application in order not to visit the sins of an indolent counsel on his client and also to give the parties a good opportunity to ventilate their grievances. I agree with my learned brother that because the applicant has filed his brief of argument and a motion to regularize their position, this is a good case to exercise the Court’s discretion in his favour. I therefore also allow this application. I adopt the order as to re- listing made by my learned brother.
Appearances:
Ogechi Gift (Mrs.)For Appellant(s)
O.O. Fatimehin, Esq.For Respondent(s)
