AFRICAN PETROLEUM PLC v. JERRY AND KOS (NIG.) ENTERPRISES LTD (2020)

AFRICAN PETROLEUM PLC v. JERRY AND KOS (NIG.) ENTERPRISES LTD

(2020)LCN/14146(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, April 23, 2020

CA/L/1307/2016

Before Our Lordships:

Tijjani Abubakar Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

AFRICAN PETROLEUM PLC APPELANT(S)

And

JERRY AND KOS (NIG.) ENTERPRISES LTD RESPONDENT(S)

RATIO

DETERMINATION OF PRELIMINARY OBJECTION

The need to address the preliminary objection raised by the Respondent first is settled beyond any dispute by any counsel. This is because the law is trite, which is that, once preliminary objection is raised, it should be addressed first because the determination of same will determine whether the appeal will be heard on the merit. If the preliminary objection succeeds, the case ends or is terminated and there will be no need to proceed to consider the merit of the case as the purpose of the preliminary objection is to challenge the competence of the appeal. The success of the preliminary objection terminates the appeal at that stage. The merit of any case upon which a preliminary objection is raised can only be looked into by a Court if the preliminary objection fails. See General Mohammed A. Garba (Rtd) vs. Mustapha Sani Mohammed & Ors (2016) LPELR-40612 (SC); Afribank Nig Plc vs. Mr Chima Akwara NSCQLR Vol. 25 (2006) 253; Udenwa & Anor vs. Udozima & Anor (2013) 5 NWLR (Pt. 1346) 94; Allanah & Ors vs. Kpolokwu & Ors (2016) 1 SC (Pt. 1)1. PER TOBI, J.C.A.

THE EFFECT OF NOTICE OF APPEAL WITHOUT APPELLANT BRIEF

The law on the effect of notice of appeal without the appellant brief is clear and unequivocal. It is that, there is no appeal when there is no brief in support of the appeal. An incompetent brief cannot help the notice of appeal as this will amount to doing the impossible which is placing something on nothing, expecting it to stand. This is impossible except in a cheap magician’s trick. Magic has no place in law as the law is trite, which is that no one can place something on nothing expecting it to stand. The law of gravity will naturally pull it down. See Sijuade vs. Elugbindin & 3 Ors. (2017) LPELR-42702 (CA).
Incompetent Appellant’s brief of argument amounts to incompetent appeal and the result is to dismiss the appeal for want of diligent prosecution. See Chinye Ezeanah vs. Mahmoud Atta (2004) 4 MSJ 1; Dingyadi vs. INEC (2010) ALL FWLR (Pt. 550) 1204; SEC & Ors vs. Okeke (2018) LPELR-44461 (SC); AlilAlaba Int’l Ltd & Anor vs. Sterling Bank (2018) LPELR-44903; Kraus Thompson Organisation vs. NIPSS (2004) 17 NWLR (Pt. 901) 44. PER TOBI, J.C.A.

WHETHER OR NOT ISSUES OF APPEAL MUST STEM FROM THE GROUNDS OF APPEALS

The other ground of objection deals with the issues for determination as spelt out in the Appellant’s brief. The submission of Respondent’s counsel is that issues 1 and 2 as formulated by the Appellant in the brief do not flow from the grounds of appeal and therefore the brief is incompetent and the consequence is that the appeal is also incompetent. This is a very ambitious submission as it does not represent the legal position. Even if the Respondent succeeds in challenging the issues for determination on issues 1 and 2 as formulated by the Appellant, that cannot make the appeal incompetent as there is an issue 3 that in my opinion is covered by grounds 2 and 3. In such a situation, a Court cannot hold the brief entirely incompetent. What the Court can do at the best is to strike out those issues and the arguments therein and decide the appeal on the sole ground and issue before the Court. This is because it is trite that a single or sole ground of appeal can sustain an appeal. SeeAlhaji Rasaki Ekunola vs. CBN (2013) 4-5 SC (Pt. v) 43; Mohammed & Anor vs. Lasisi Sanusi Olawunmi & Ors (1990) 2 NWLR (Pt. 133) 458; Chrome Air Service Ltd vs. Fidelity Bank (2017) LPELR-43470 (SC).
Learned counsel for the Respondent in my opinion has stated the correct position of the law which is that the issues for determination must be formulated from the grounds of appeal and any issue for determination which does not flow from the grounds of appeal is incompetent and should be struck out as such issue is valueless and must be ignored. This is trite law that gives no room for double interpretation. It is settled and as clear as the natural law that day follows night. See Jenkis Gwede vs. INEC (2014) 18 NWLR (Pt. 1438) 56; Ahaji Akere & Ors vs. The Governor of Oyo State & Ors (2012) 12 NWLR (Pt. 1314) 240. PER TOBI, J.C.A.

THE INHERENT POWER OF THE COURT TO SET ASIDE ITS JUDGEMENT

In the circumstance, was the Lower Court right? The point must be made that although a Court becomes function officio after delivering a judgment and therefore should not revisit the decision; there are exceptions to this general rule. A Court has the powers to set aside its judgment or decision in some circumstance when there are defects in the judgment which goes to the issue of jurisdiction. See Auto Import Export vs. J.A.A. Adebayo & Ors (2002) LPELR-643 (SC). In Bello vs. INEC (2010) 2 FWLR (Pt. 522) 3603; LPELR-767 (SC), the Apex Court per Adekeye, JSC at pages 78-79 drove home this point in these words:
“A Court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside. Okafor v. Okafor (2000) 11 NWLR pt. 677 pg. 21, Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC pg. 6, Obimonure v.Erinosho (1966) 1 ALL NLR pg. 250. The power of a Court to set aside its judgment is statutory. The Court does not have power enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in circumstances where: –
a) The writ or application was not served on the other party or
b) The action was tainted with fraud or the Court lacks jurisdiction to entertain the action. Lawal v. Dawodu (1972) 8 – 9 SC pg. 83. PER TOBI, J.C.A.

WHETHER OR NOT A COURT HAS THE JURISDICTION TO SIT ON APPEAL OVER ITS DECISION ONCE DELIVERED
Where the Court has not pronounced a judgment on merits or by consent, such a judgment may be set aside by any trial Court in the judicial division where the judgment was obtained. Wimpey Ltd. v. Balogun (1986) 3 NWLR pt. 28 pg. 324, Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC pg. 145 Ugwu v. Aba (1961) 1 ALL NLR pg. 438, Afribank (Nig.) Ltd. v. Owoseni (1995) 2 NWLR pt. 375 pg. 110, Ndika v. Chiejina (2003) 1 NWLR pt. 802 pg. 451.”
The Apex Court per Onnoghen, JSC held the same position in Ugba & Anor vs. Suswam & Ors (2014) 4-5 SC 47 thus:
“It is settled law that the decisions of this Court are final by which is meant that the Court has no jurisdiction to sit on appeal over its decision once delivered. However, the Court has the inherent power to set aside its decisions when same are later found to be a nullity or obtained by fraud. The above power does not extend to sitting on appeal over its decisions as stated in the case of Igwe vs Kalu (2002) 14 NWLR (Pt.78) 435 at 455 where it is stated as follows: –
“……the inherent jurisdiction of the Court to set aside its judgment cannot be converted to an appellate jurisdiction as though the matter before it is another appeal, intended to afford losing litigants yet another opportunity to re-state or re-argue their appeal. It must be emphasized that this Court is a Court of final resort and under the Constitution, it cannot under any disguise sit on appeal over its judgment or review it except under very exceptional circumstances…”
The exceptional circumstances the Court referred to, supra, are very stringent indeed and are stated at pages 453 – 454 of the case of Igwe vs Kalu supra as follows:-
“I shall state that this Court possesses inherent power to set aside its judgment in appropriate cases. Such cases are;
(i) When the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Ataka vs Adekunle (1959) L.L.R 76; Flower vs Liowd (1877) Ch. D 297; Olufunmise vs Falana (1990) 3 NWLR (Pt.136) 1.
(ii) When the judgment is a nullity. A person affected by an order of Court is entitled ex debito justitiae to have it set aside. See Skenconsult Ltd vs Ukey (1981) 1 S.C. 6; Craig vs Kanssen (1943) KB 256 at 262 and 263; Ojiako & Ors vs Ogueze & Ors (1962) 1 SCNLR 112, (1962) 1 All NLR 58; Okafor & Ors vs Anambra State & Ors (1991) 6 NWLR (Pt. 200) 659, 680.
(iii) When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade vs Okunoga & Co (1961) All NLR 100 and Obimonure vs Erinosho (1966) 1 All NLR 250.”
The Lower Court therefore will not be offending any law either statutory or case law to set aside the judgment of 1/2/2010 provided this is done within the context of the law, that is if there is a fundamental defect in the judgment which makes the judgment a nullity. One thing that makes a judgment a nullity which is up for consideration in this appeal is if the Court exercise jurisdiction over a matter it has no jurisdiction to handle. PER TOBI, J.C.A.

JURISDICTION OF THE COURT ON PARTIES NOT SERVED

The importance of jurisdiction in a case cannot be overemphasized. The subject of jurisdiction in judicial process is like breath for a human being. Just as there is no life without breath so a Court cannot handle any case without jurisdiction. Any decision arrived at by a Court no matter how brilliant will amount to a nullity and indeed the whole proceeding will amount to a nullity if it is done without jurisdiction. See The Chief of Air Staff & Ors vs. Wing Commander P.E. Iyen (2005) 1 SC (Pt. II) 121; Ndigwe vs. Nwude (1999) 11 NWLR (Pt. 626) 314; Iragbiji vs. Oyewinle (2013) 13 NWLR (Pt. 1372) 516.
It will be a complete waste of time and resources to attempt to hear a matter without the Court having jurisdiction. This is why when the issue of jurisdiction is raised, the Court will first determine same and depending on the decision on jurisdiction, the Court may or may not continue with the case. If the Court holds that it has no jurisdiction, that ends the case before the Court but if the Court has jurisdiction then it will continue to decide the case on the merit.
The jurisdiction of a Court over a person is conferred when the process is served on that person. A Court cannot exercise jurisdiction on a person to whom the processes of Court has not been served. What confers jurisdiction on a Court is the service of the Court process on all the parties as this gives the party the opportunity to defend the case brought against him. A party who is not served the process against him will be denied fair hearing and this is a good ground to set aside a judgment. This Court in Compact Manifold & Enery Services Limited vs. Pazan Services Nig. Limited (2017) LPELR-41913 per Nimpar JCA held:
“The Court below is empowered by the rules of Court to enter judgment during pre-trial sessions. See Order 10 Rule 3 of the Lagos State High Court (Civil Procedure) Rules, 2012 which allows a Claimant in the absence of a defendant to ask for judgment during pre-trial conference session in a liquidated money claim and the conditions under which such a judgment can be set aside are set out in Order 20 Rule 12 which provides:
Any judgment by default whether under this order or under any other order of these Rules shall be final and remain valid and may only be set aside upon application to the judge on grounds of fraud, non-service or lack of jurisdiction upon such terms as the Court may deem fit.”
See also Hyppolite vs Egharevba (1998) 11 NWLR (Pt. 575) 598; Delta State Government vs. Okon (2002) 2 NWLR (Pt. 752) 668.
No Court can exercise jurisdiction over a person who is not served with the process of Court. Even if the Court has subject and territorial jurisdiction, if there is no service of the process on the party and the Court goes ahead to hear the case and deliver judgment, the proceeding and the judgment will be a nullity. See Kalu & Anor vs. Gabriel Eke (2004) 2005 (Pt. 259) 1; Tsokwa Motors (Nig) Limited vs. UBA Plc (2008) 2 FWLR (Pt. 425) 3457. PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This present appeal is against the ruling of Hon. Justice E.A. Adebajo of the High Court of Lagos State in Suit No. BD/46/2009 – Jerry and Kos (Nig.) Enterprises Ltd. vs. African Petroleum Plc delivered on 24/5/2011. The facts of the case are simple and straight forward. At the Lower Court, the Respondent (then Claimant) filed this action vide a Writ of Summons seeking the following reliefs:
“a. A DECLARATION that the 1st defendant’s right to the possession of claimant’s property at KLM 52, Badagry Expressway, Ibereko, Badagry Lagos State expires by effluxion of time on the 18th day of August, 2006.
b. AN ORDER directing the 1st and 2nd defendants to vacate forthwith the claimant’s property at KLM 52, Badagry Expressway, Ibereko, Badagry Lagos State.
c. The sum of Thirty Thousand Naira (N30,000) per month as mesne profit and/or for the use and occupation of claimant’s property at KLM 52, Badagry Expressway from September 2006 until possession is given up.”

The Lower Court entered judgment for the Respondent in line with the claims stated above

on 1/2/10 on the premise that there is no appearance by the Appellant. The judgment was entered in default of the Appellant entering appearance. In legal parlance, the judgment is called a default judgment. The Appellant consequent upon the judgment, filed a motion seeking for an order to set aside the judgment principally on the premise that the Writ and all other frontloaded documents were not served on it and as such it was not aware of the pendency of the suit and consequently did not enter appearance. The said application was dismissed in the ruling of 24/5/2011. The Lower Court in the ruling contained on pages 212 – 220 held in pages 219-220 (pages 8-9 of the judgment) thus:
“… For the foregoing reason, I find that the 1st Defendant/Applicant has failed in respect of the issue 1 in his Reply written address and that there has been a proper service of the court process on the 1st Defendant.
There is no reason therefore for the setting aside of the judgment of this court delivered on 1st February, 2010 and the order sought to that effect is refused. Consequently, and there is no basis for setting aside the proceeding in the

suit, the third and fourth legs of the application are refused.
The application of the 1st Defendant/Applicant is therefore incompetent and it is hereby dismissed.”

The Appellant dissatisfied with the ruling of the Lower Court has filed this appeal. The notice of appeal dated and filed 7/5/201 contains 3 grounds of appeal which are found on pages 221 -223 of the record of appeal. For completeness, I will reproduce the grounds of appeal:
Ground 1:
The Learned Trial Judge erred in law when he refused to set aside its judgment dated the 1st February, 2010 against the Appellant at the Lower Court and therefore occasioned a miscarriage of justice against the Appellant.
Ground 2:
The Learned Trial Judge erred in law when he dismissed the Appellant’s Application holding that there was proper service of the processes on the Appellant prior to the entering of the default judgment in favour of the Respondent and thereby denied the Appellant fair hearing before the Lower Court.
Ground 3:
The Learned Trial Judge misdirected himself in Law and occasioned a miscarriage of justice against the Appellant when he held inter

alia at the Lower Court:
“… That there has been a proper service of the Court process on the 1st Defendant. There is no reason therefore for the setting aside of the judgment of this court delivered on 1st February, 2010 and the order sought to that effect is refused.”

The Appellant’s brief filed on 25/1/17 was settled by their counsel Chimezie Victor C. Ihekweazu, SAN. In the Appellant’s brief, three issues for determination were distilled. These are:
1. Whether the refusal of the Lower Court to set aside its judgment can be sustained considering the law, the nature of the Respondent’s claim, the circumstances and the fact that the Lower Court had no jurisdiction to entertain the Respondent’s Suit against the Appellant or to grant the default judgment in favour of the Respondent. (GROUND 1)
2. Whether considering the law and the material evidence before the Lower Court, the decision of the Lower Court dated the 24th day of May, 2011 does not amount to a denial of the Appellant’s right to fair hearing before the Lower Court. (GROUND 2)
3. Whether considering the law and the circumstances

of this case, the Lower Court did not occasion a miscarriage of justice against the Appellant when it held that there has been a proper service of the Court process on the Appellant and that there is no reason therefore for setting aside the judgment of the Court entered in favour of the Respondent on 1st February, 2010. (GROUND 3)

On issue 1, it is the submission of learned silk for the Appellant that the lower Court in its ruling refusing to set aside the default judgment in issue, completely misconstrued and misapplied the provisions of Order 20 of the High Court of Lagos State (Civil Procedure) Rules 2004 to the pleadings and processes before the Court. Relying on Onuorah vs. Kaduna Refining Petrochemical Co. Ltd (2005) 6 NWLR (Pt. 921) 393 and Adeyemi vs. Opeyori (1976) 9-10 SC 31, counsel submitted further that the relevant documents the Court ought to look at in deciding whether it has jurisdiction is the Writ of summons and the statement of claim. It is the contention of counsel that where there is breach of any of the conditions laid down in Madukolu vs. Nkemdilim (1962) 2 SCNLR 343 in commencing a suit, the Court cannot properly assume

jurisdiction. He further contended that going by the reliefs sought by the Respondent in its Writ of summons upon which the Lower Court granted the Default judgment, the Lower Court lacks jurisdiction to entertain the Respondent’s claim and or to grant a default judgment in favour of the Respondent under Order 20 of the High Court of Lagos State (Civil Procedure) Rules, 2004; as same is a declaratory relief which normally is not obtained in default. More so, the other reliefs sought are reliefs which can only be brought in proceedings for recovery of premises where the relevant provisions of the Recovery of Premises Law, Cap 118, Laws of Lagos State 1973 have been fully complied with. He cited Awe vs. Saidi (1961) ALL NLR 477 and Gambari vs. Gambari (1990) 5 NWLR (Pt. 152) 572.

It is the submission of learned silk that the Lower Court ought not to have granted the default judgment in the first place and where it erroneously did, the court ought to have granted the Appellant’s application to set aside the default judgment; as there is no evidence before the Lower Court to show that statutory notices have been duly issued and served on the

Appellant to warrant the Court to assume jurisdiction in the matter. He relied on Ajuwon vs. Akanni (1993) 9 NWLR (Pt. 316) 182 and Amadi vs. NNPC (2000) 10 NWLR (Pt. 674) 76. It is the argument of counsel that rather than the Lower Court considering the issue of lack of jurisdiction raised by the Appellant in its application to set aside the default judgment, the Lower Court singled out the issue of lack of proper service of originating process on the Appellant and proceeded to give its decision based on this singular issue. It is his further argument that there was sufficient materials before the Court to show that the Respondent is estopped from bringing the suit as the issue of title to the land in issue, the basis on which the Respondent now claim possession, had previously been litigated upon and conclusively decided by the Supreme Court in Appeal No. SC/136/67. This fact, counsel submitted was well known to the Respondent and same pleaded by the Appellant in its proposed statement of defence attached to the affidavit in support of its application; yet the Lower Court still dismissed the application. Counsel relied on

Sasegbon’s Laws of Nigeria by Deji Sasegbon SAN, 1st Ed., DSC Publications at 752 and the cases of Fadiora vs. Gbadebo (1978) 3 SC 219 and Cardoso vs. Daniel (1986) 2 NWLR (Pt. 20) 1 in submitting that had the Lower Court taken time to properly look at the Appellant’s affidavit in support of its application to set aside the default judgment and the proposed statement of defence, the Court would have better appreciated the facts of the case before it and not venture into the error it did in refusing the Appellant’s application to set aside the default judgment.

Going further, counsel stated that where a plea of estoppel per rem judicata is upheld in a suit, it robs the Court of its jurisdiction to entertain the said action against which the plea of rem judicata was upheld. He placed reliance on Omokhale vs. Esekhomo (1993) 8 NWLR (Pt. 309) 58 @ 67 and Yoye vs. Olubode & Ors. (1974) 10 SC 209. Finally on issue one, it is counsel’s submission that a declaratory relief cannot be granted by way of a default judgment especially in land matters. He cited Bello vs. Eweka (1981) 1 SC 101; Ogolo vs. Ogolo (2006) 5 NWLR (Pt. 972) 163 and Inyang vs. Chukwuogor (2007) 28 WRN

100 and urged this Court to resolve issue one in favour of the Appellant and allow the appeal.

On issue 2, the Learned silk relying on Section 36 of the Constitution of the Federal Republic of Nigeria 1999 and Adigun vs. A.G Oyo State (1987) 1 NWLR (Pt. 53) 678; Samba Pet. Ltd & Anor vs. UBA Plc & 3 Ors (2010) 5-7 SC (Pt. II) 22 @ 42 and Tamti vs. N.C.S.B (2009) 7 NWLR (Pt. 1141) 631 @ 663 submitted that the consequence of a breach of the principle of fair hearing is that it renders a decision of a court null and void and liable to be set aside by the Appellate Court. Counsel contended that failure of the Lower Court to set aside the default judgment obtained by the Respondent and allowing the Appellant to be heard in the suit amounted to an infringement of the Appellant’s right to fair hearing. He stated that where one of the pillars of the principle of natural justice is absent, a litigant would not be said to have had a fair hearing because both pillars must exist side by side. He cited Mfa vs. Inongha (2005) 7 NWLR (Pt. 923) 1; Samba Pet. Ltd & Anor vs. UBA Plc & 3 Ors. (Supra); Bamgboye vs. University of Ilorin (1999) 6 SC (Pt. II)

II) 72; Kotoye vs. CBN (1989) 2 SC (Pt. 1); A.G Lagos State vs. C.U.S Ltd (2002) 14 NWLR (Pt. 786) 105 @ 126; Obodo vs. Olomu (1987) 8 NWLR (Pt. 59) 111 and State vs. Ajie (2000) 11 NWLR (Pt. 678) 434, (2000) 7 SC (Pt. 1) 24.Finally, on this issue, it is the contention of counsel that looking at the endorsement copy of the motion on notice for judgment purported to have been served on the Appellant, the said process does not have the hearing date stated on it. Relying on Hon. Comm. For Local Govt. and Chieftaincy Affairs, Akwa Ibom State & Anor vs. Chief Essien Akpanette (2009) 9 NWLR (Pt. 1145) 108 @ 118-119, it is the submission of counsel that fair hearing includes being informed of the actual hearing date of the proceedings.On issue 3, it is the submission of counsel that the court is duty bound to ensure that a Defendant in a suit before it, is properly served and heard before any decision or judgment is given in the matter. He cited Okafor vs. A.G Anambra State (1991) 6 NWLR (Pt. 200) 659; Okike vs. LPDC (Legal Practitioners Disciplinary Committee (2006) 1 NWLR (Pt. 960) 67 at 92, 99. He further submitted relying on Owodunni vs.Registered Trustees of Celestial Church of Christ & 3 Ors

(2002) 6 SC (Pt. II) 60 and The Stool of Abinabina vs. Chief Kojo Enimadu (1953) 12 WACA 171 at 173 that the Lower Court abandoned the duty placed on it to adjudicate on all the issues raised before it and failed to carry out its duty to properly consider all issues placed before it in order to arrive at a conclusive and decisive pronouncements on those issues in its judgment or ruling. It is the contention of learned silk that the reliefs claimed by the Respondent in its Writ of summons and Statement of claim do not fall within the category of claims for which judgment can be obtained without a hearing and or without complying with the provisions of the Recovery of Premises Law. He placed reliance on Okedare vs. Adebara (1994) 6 NWLR (Pt. 349) 157. Still on this, counsel submitted that the affidavits of service in respect of the originating process and the motion for judgment are incompetent in that the said affidavits do not properly state the manner of the purported service and also do not disclose proper acknowledgment of receipt of service by the Appellant’s or its office as required.

He relied on the case of Bello vs. N.B.N Ltd (1992) 6 NWLR (Pt. 246) 206 and Civil Procedure in Nigeria by Fidelis Nwadialo, 2nd Edition, University of Lagos Press at Pages 251, 255-256 and Page 263; Order 7 Rule 13 (1) of the High Court of Lagos State (Civil Procedure) Rules 2004. It is the contention of counsel that the affidavit of service merely stated that service was effected on the Appellant by delivering same to one Mary Edu with the endorsement copy merely describing her as Sec. officer without linking her to the Appellant or stating the place of receipt. It is the further contention of counsel that this offends the principle of service on corporation. Counsel relying on Alao vs. Inaolaji Builders Ltd (1990) 7 NWLR (Pt. 160) 36; Odutola vs. Kayode (1994) 2 NWLR (Pt. 324) 1; Teno Eng. Ltd vs. Adisa (2005) 10 NWLR (Pt. 933) 346 and Civil Procedure in Nigeria by Fidelis Nwadialo stated that a proper service must show proof of due personal service as required by law and must specifically state the fact, place, mode and date of service. Anything short of this, learned silk submitted will lead to the order made thereon to be set aside and be declared a nullity.

He citedINEC vs. Nnaji (2004) 16 NWLR (Pt. 900) 473 @ 477; Ezeonwu vs. Onyechi (1996) 3 NWLR (Pt. 438) 499, Emuakpor vs. Ukavbe (1975) 12 SC 421 and Skenconsult Nig. Ltd vs. Ukey (Supra).

In conclusion, the Appellant wants this court to allow this appeal and set aside the decision of the Lower Court for the following reasons:
1. The Lower Court lacks the jurisdiction to entertain the Respondent’s suit before the Lower Court against the Appellant.
2. The Respondent is estopped from bringing the suit before the Lower Court to re-litigate on a matter decided upon by a Court of competent jurisdiction.
3. The decision of the Lower Court dated 24th day of May, 2011 amounts to a denial of the Appellant’s right of fair hearing in the suit before the Lower Court.
4. The decision of the Lower Court appealed against in the present appeal occasioned a serious miscarriage of justice against the Appellant.
5. The decision of the Lower Court appealed against in the present appeal is perverse and is not in the overall interest of justice.
6. The Respondent’s suit before the Lower Court with due respect constitute fraud and

wrong doing on the part of the Respondent, in that the subject matter of the suit has since been laid to rest by Courts of competent jurisdiction in Appeal No. SC/136/67, before the Supreme Court and Suit No. ID/2275/94 before the High Court of Lagos State.
7. The Appellant was denied fair hearing at the Lower Court.
8. It will serve the interest of balanced justice to allow the appeal.

The counsel that settled the brief of the Respondent is Christian Mbajika Esq. The amended Respondent’s brief of argument was filed 23/1/2018 but deemed on 16/1/2019. Learned counsel on 13/9/2017 filed a preliminary objection to the jurisdiction of the Court in hearing this appeal. The grounds on which the preliminary objection was premised are:
a. Appellant’s brief of argument is incompetent.
b. Issue one of Appellant’s brief is incompetent as it did not relate to the ground one of notice of appeal or any of the particulars.
c. Issue one of the Appellant’s brief of argument is incompetent being an attack on the default judgment of the Court below which the Appellant did not appeal against.
d. The body of argument

on issue two of the Appellant’s brief of argument is a purported attack on the default judgment of the Lower Court which was not appealed against by the Appellant.

In the Respondent’s brief of argument, counsel for the Respondent raised a lone issue for determination before this Court. That is:
Whether the Appellant satisfied the conditions of proof of fraud, non-service or lack of jurisdiction required for the setting aside of default judgment of the Court below as provided under Order 29 Rule 12 of the High Court of Lagos State (Civil Procedure) Rules 2004.

Arguing on the preliminary objection, counsel relying on Archbode Engineering Ltd vs. Water Resources Hydro Technique (1985) 3 NWLR (Pt. 12) 300 stated that the Appellant counsel only signed the cover page of its brief of argument but did not sign the body of the brief. Also, the body of the brief has no heading such as where the appeal was brought, the appeal number, parties to the appeal and the title of the brief. It is the submission of counsel that the cover page of Appellant’s brief of argument is a separate document that do not form part of the body of the brief

of argument. He urged this Court to dismiss the appeal as an unsigned document is a worthless piece of paper. He cited Seidu vs. A.G Lagos State (1986) 2 NWLR (Pt. 21) 165; A.G Abia vs. Agharanya (1999) 6 NWLR (Pt. 607) 362; Anaeze vs. Anyaso (1993) 5 SCNJ 151 and Kwara State Investment Company Ltd vs. Garuba (2000) 10 NWLR (Pt. 674) 25. Relying on Madukolu vs. Nkemdilim (1962) 2 SCNLR 343, learned counsel submitted that for this Court to assume jurisdiction over this appeal there must be a competent Appellant brief of argument. It is the argument of counsel that the Appellant raised the issue of jurisdiction which did not arise from ground 1 of the notice of appeal. He therefore urged this Court to discountenance the argument of the Appellant counsel as it relates to the jurisdiction of the Court below. He cited Balogun vs. Adejobi (1995) 1 SCNJ 242; Oduntan vs. General Oil Limited (1995) 4 SCNJ 145; Order 19 Rule 3 of the Court of Appeal Rules 2016; Imonikhe vs. A.G Bendel State (1992) 6 NWLR (Pt. 248) 396 and Ngilari vs. Mothercat Ltd (1993) 8 NWLR (Pt. 311) 370. It is his further argument that the nature of the Respondent’s claim as argued by the

Appellant in its brief was not in any way founded on any ground of the notice of appeal and that since there is no appeal against the judgment of 1/2/2010 entered for the Respondent but rather the ruling of the Court dated 24/5/2011, the said judgment is still binding and subsisting. He relied onNwokedi vs. Okugo (2002) 16 NWLR (Pt. 794) 441 @ 4119; Balogun vs. Adejobi (1995) 2 NWLR (Pt. 376) 131 @ 163; Government of Gongola State vs. Tukur (1989) 4 NWLR (Pt. 117) 592 @ 609; Oleksandr vs. Lonestar Drilling Co. Ltd (2015) 9 NWLR (Pt. 1464) 337; Iyoho vs. Effiong (2007) 11 NWLR (Pt. 1044); SPDC (Nig) Ltd vs. X.M. Fed Ltd (2006) 16 NWLR (Pt. 1004) 189; Adejobi vs. State (2011) 12 NWLR (Pt. 261) 347; Omoniyi vs. Alabi (2015) 6 NWLR (Pt. 1456) 572; Iloegbunam vs. Obiora (2012) 2 NWLR (Pt. 1291) 405 @ 421 and Oloruntoba-Oju vs. Abdul Raheem (2009) 13 NWLR (Pt. 1157) 83. He urged this Court to discountenance all the arguments of the Appellant counsel as it pertains to the judgment in default delivered on 1/2/2010.

It is the submission of counsel that the Appellant counsel was misconceived when it argued that the lower Court lacked jurisdiction to entertain the

claims of the Respondent as the vital documents which the Court looks at in determining if it has jurisdiction is the writ of summons and statement of claim. He cited Okorocha vs. United Bank for Africa Plc (2011) NWLR (Pt. 1228) 348 @ 373; A.G Federation vs. A.G Abia (2001) 11 NWLR (Pt. 725) 689 @ 740; Orthopaedic Hospitals Management Board vs. Garba (2002) 14 NWLR (Pt. 788) 538 @ 564 and A.G Anambra vs. A.G Federation (1993) 6 NWLR (Pt. 302) 682 @ 742. It is further submitted by counsel that the argument of Appellant counsel that declaratory reliefs are not obtained in default is highly misconceived as the principle does not apply to the Respondent’s case which is backed up by affidavit evidence. He placed reliance on GE Int’l & Operations Ltd vs. G. Oil & Gas Services (2015) 1 NWLR (1440) 244; Adegbuyi vs. Mustapha (2010) LPELR 3600 and Maja vs. Samouris (2002) 7 NWLR (Pt. 765) 78. It is posited by counsel that the contention of the Appellant counsel that the Respondent did not comply with the provisions of Recovery of Premises Laws of Lagos State 1973 was also misconceived as the law only requires service of statutory notices which was

served without the Appellant filing a counter affidavit. He cited Azeez vs. State (1986) 2 NWLR (Pt. 23) 541; NPA vs. Alco (2010) 3 NWLR (Pt. 1182) 487 and Egbuna vs. Egbuna (1989) 2 NWLR (Pt. 106) 773.

Learned counsel contended that the Appellant’s notice of appeal did not contain estoppel or res judicata as a ground of appeal and therefore urged this Court to discountenance the argument. He relied on Okoye vs. Okonkwo (2015) 5 NWLR (Pt. 1451) 127 and Wema Bank Plc vs. Abiodun (2006) 9 NWLR (Pt. 984) 1.

On fair hearing, it is the submission of the Respondent counsel that the Appellant was given an opportunity to be heard but failed to utilize the opportunity but rather chose to monitor and spy on the proceedings until judgment was delivered against it. He cited Adele Eke vs. Ogbonda (2007) MJSC 180 ratio 2; Inakoju vs. Adeleke (2007) 2 MJSC 1 ratio 29; Ekiyor & Anor vs. Chief Bomor (1997) NWLR (Pt. 519) 12, 14-15; Zakari vs. Nigerian Army (2012) 5 NWLR 478 and Pam vs. Mohammed (2008) 16 NWLR (Pt. 1112). It is the further submission of counsel that it does not lie in the mouth of the Appellant to complain of lack of fair hearing as the

Appellant after service was given more than seven days to file a counter affidavit to the motion for judgment but never did which is tantamount to admittance of the averments as contained in the affidavit in support of the motion for judgment. He relied on Inakoju vs. Adeleke (Supra). It was posited by counsel that the Appellant did not prove any of the grounds of fraud, non-service or lack of jurisdiction and as such, the Court was right in refusing its application.

Counsel relying on Ezeonwu vs. Onyechi (1996) 3 NWLR (Pt. 438) 507; Adeosun vs. Babalola (1972) 5 SC 292; Ogiamien vs. Ogiamien (1967) NMLR 245; Ohochukwu vs. A.G Rivers State (2012) Vol. 2 MJSC (Pt. 11) 65 @ 73 and Orizu vs. Anyaegbunam (1978) 5 SC 21 submitted that the Trial Court was right in not making pronouncement on res judicata as this was not one of the issues raised by the Appellant. It is also submitted that the Appellant did not present as an issue the plea of estoppels since the Appellant did not attach as exhibit the said judgment to its application. Counsel cited Olukoga vs. Fatunde (1996) 9 -10 SCNJ 1; Usman vs. Kusfa (1997) 1 SCNJ 133 @ 140-141 and Section 167 (d) of Evidence Act 2011

in stating the principle of law that a party that relies on cause of action estoppels or issue estoppels has the burden of producing an admissible copy of the previous judgment on which he relies; failure of which there will be a presumption that the document if produced will be unfavourable to the person that withholds it.

Going further, it is submitted by counsel that contrary to the Appellant’s counsel submission, the Appellant was properly served in accordance with the provisions of the law. Counsel cited National Institute for Policy & Strategic Studies vs. Kraus Thompson Organization Ltd(2001) FWLR (Pt. 45) 702 @ 715; Ethiopian Airlines vs. Onu (2005) 11 NWLR (Pt. 936) 214; Evangelist Effanga vs. Mr. Rogers (2003) FWLR (Pt. 157) 1058; IBWA vs. Sasegbon (2007) 16 NWLR (Pt. 1059) 195; Fatokun vs. Somade (2003) 1 NWLR (Pt. 802) 431; Aina vs. Obabiolorunkosi (1986) 2 NWLR (Pt. 22) 316 in stating that service effected at the registered office of the company is a good service; so much so that leaving such process on the premises of the registered office of the company qualifies as proper service under the rules, even though the name of

the official of the company whom the document was delivered to is not stated. He referred to Ben Thomas Hotel Ltd. vs. Sebi Furniture Ltd (1989) 5 NWLR 523; Daewoo Nigeria Ltd vs. Uzoh (2008) All FWLR (Pt. 399) 456 and Fidelis Nwadialo Civil Procedure in Nigeria 2nd edition 256.
It is the final submission of counsel that the argument of Appellant’s counsel that the processes were served on security personnel in a building that was being occupied by a number of other companies is not backed by any evidence and address of counsel cannot be substituted for evidence. He relied on Obidike vs. State (2014) 5 PNLR 1; Niger Construction Ltd vs. Okugbeni (1987) 4 NWLR (Pt. 67) 787 @ 791 and Obodo vs. Olomu (1987) 3 NWLR (Pt. 66) 111 @ 123.

In conclusion, the Respondent wants this court to uphold the preliminary objection and/or dismiss this appeal in its entirety for the following reasons:
1. The Appellant’s brief of argument did not comply with the law and practice that required Court processes to be properly headed, dated and signed.
2. All the arguments as contained in issues one and two of the Appellant brief of argument only

attacked judgment of the Lower Court which was not appealed against.
3. The Appellant did not prove fraud, non-service or lack of jurisdiction which are conditions for the Court below to set aside its default judgment in accordance with the rules of the Court below.

The Appellant exercising its right of reply filed a reply brief on 16/3/2017 which was deemed on 16/1/2019. In its reply brief, the Appellant raised three issues for determination arising from the Respondent’s notice of preliminary objection, to wit:
a. Whether the Appellant’s brief of argument dated 25/1/2017 was not properly signed in accordance with the provisions of the law.
b. Whether the Honourable (sic) lacks jurisdiction to entertain and hear the appeal.
c. Whether the said Appellant brief is an abuse of Court process.

On the issue 1, it is the submission of counsel that a cursory look at the Appellant’s brief of argument will reveal that it complied with the provisions of the Rules of this Honourable Court as same was duly settled and signed by counsel and has an address for service. Counsel urged this Court to discountenance the argument of

the Respondent counsel as same is misconceived, unnecessary and out of place. He cited Avong vs. K.R.P.C Ltd (2002) 14 NWLR (Pt. 788).

In respect of issue 2, it is the submission of counsel that there is nothing that bars this Court from entertaining and determining this appeal as same was initiated by due process of law. He relied on Madukolu vs. Nkemdilim (1962) 2 SCNLR 343.

On issue 3, it is the submission of counsel that the argument of the Respondent Counsel is misconceived as the Appellant’s brief of argument was filed in accordance with the Rules of Court and as required by law. There is nothing in the brief of argument that indicates any issue of abuse of Court process. He referred to A.G Lagos State vs. A.G Federation (2014) 9 NWLR (Pt. 1412) 217. He therefore urged this Court to dismiss the preliminary objection as same is baseless. It is the contention of Appellant counsel that all the issues raised in the Appellant’s appeal are issues that arose from the decision of the Lower Court. It is also contended that one of the issues argued by the Appellant at the Lower Court is the issue of jurisdiction of the Court and the Lower

court ought not to have exercised jurisdiction over the matter in the first place. Same factors such as the issue of estoppels and res judicata that affected the jurisdiction of the Lower Court have been argued in the Appellant’s brief of argument. He cited Alhaji Bello Nasir vs. Civil Service Commission, Kano State (2010) 5 NWLR (Pt. 1190) 255 @ 276. It is the final submission of counsel that the Appellant duly proved the necessary grounds for the setting aside of the judgment of the Lower Court. He therefore urged the Court to allow the appeal and to set aside the judgment of the Lower Court in the interest of justice.

What is clear from the facts of the case at the Lower Court is that the Respondent instituted an action against the Appellant on 28/5/2009. The reliefs sought I had stated above so I will not repeat same. The Appellant did not file any process in response to the suit registered as BD/46/2009. Consequent upon this, the Respondent filed a motion for judgment on 12/11/2009. The Appellant did not show up or file any process and so judgment was delivered in favour of the Respondent, who was Claimant at the Lower Court. This was on

1/2/2010. The Appellant consequent upon this, filed a motion on 11/2/2010 before the Lower Court to set aside the said judgment principally on the grounds that it was not served with the processes in the matter leading to the judgment namely; the notice to quit, the intention to recover possession, the originating process and the motion for judgment. The Lower Court considered the application and in its ruling of 24/5/2011 dismissed the application. The Appellant unhappy with the decision of 11/2/2010 filed this appeal. There are two decisions of the Lower Court on this matter that the Appellant is not happy with. They are the default judgment against it delivered on 1/2/2010 and the dismissal of the motion to set aside the default judgment of 1/2/2010 delivered on 24/5/2011. This appeal is principally against the decision of 24/5/2011. For avoidance of doubt, this appeal is not against the judgment of 1/2/2011 which grants the reliefs of the Respondent against the Appellant in the main. Although depending on how the appeal goes, it could affect the judgment of 1/2/2010. It is important to make this point in the light of the submission of the counsel to the

Respondent to the effect that some of the issues raised and argued in the Appellant’s brief relate to matters in the judgment of 1/2/2010 and not the ruling of 24/5/2011.

The Respondent in his brief raised a preliminary objection to this appeal on the ground that the appeal is incompetent because the Appellant brief is incompetent. By law, I will have to address the preliminary objection first as the outcome of that will determine whether I will consider the appeal on the merit. The need to address the preliminary objection raised by the Respondent first is settled beyond any dispute by any counsel. This is because the law is trite, which is that, once preliminary objection is raised, it should be addressed first because the determination of same will determine whether the appeal will be heard on the merit. If the preliminary objection succeeds, the case ends or is terminated and there will be no need to proceed to consider the merit of the case as the purpose of the preliminary objection is to challenge the competence of the appeal. The success of the preliminary objection terminates the appeal at that stage. The merit of any case upon which a

preliminary objection is raised can only be looked into by a Court if the preliminary objection fails. See General Mohammed A. Garba (Rtd) vs. Mustapha Sani Mohammed & Ors (2016) LPELR-40612 (SC); Afribank Nig Plc vs. Mr Chima Akwara NSCQLR Vol. 25 (2006) 253; Udenwa & Anor vs. Udozima & Anor (2013) 5 NWLR (Pt. 1346) 94; Allanah & Ors vs. Kpolokwu & Ors (2016) 1 SC (Pt. 1) 1.

In the light of the above, it stands to reason and logic that I will consider the preliminary objection first. The preliminary objection is based generally on the format of the brief and the issues for determination as formulated by the Appellant. It is the submission of counsel to the Respondent that the Appellant’s brief of argument filed on 25/1/2017 and argued on 27/1/2020 by Chemezie Victor Ihekweazu SAN is defective and incompetent and consequently, the appeal should be declared incompetent. The law on the effect of notice of appeal without the appellant brief is clear and unequivocal. It is that, there is no appeal when there is no brief in support of the appeal. An incompetent brief cannot help the notice of appeal as this will amount to doing the

impossible which is placing something on nothing, expecting it to stand. This is impossible except in a cheap magician’s trick. Magic has no place in law as the law is trite, which is that no one can place something on nothing expecting it to stand. The law of gravity will naturally pull it down. See Sijuade vs. Elugbindin & 3 Ors. (2017) LPELR-42702 (CA).
Incompetent Appellant’s brief of argument amounts to incompetent appeal and the result is to dismiss the appeal for want of diligent prosecution. See Chinye Ezeanah vs. Mahmoud Atta (2004) 4 MSJ 1; Dingyadi vs. INEC (2010) ALL FWLR (Pt. 550) 1204; SEC & Ors vs. Okeke (2018) LPELR-44461 (SC); AlilAlaba Int’l Ltd & Anor vs. Sterling Bank (2018) LPELR-44903; Kraus Thompson Organisation vs. NIPSS (2004) 17 NWLR (Pt. 901) 44. The implication is that if I agree with the Respondent that the Appellant’s brief is incompetent then the appeal will fail on that ground since an incompetent brief cannot be used to support the appeal as an incompetent brief is the same effect as no brief. The notice and grounds of appeal without a brief amount to nothing, as it is the brief which

gives life to the grounds of appeal. For an appeal to be properly before a Court for determination, there must be a notice of appeal containing grounds of appeal which specifically states the part of the judgment or ruling therein challenged. This is just the beginning of the process. The Appellant that is the party filing the appeal, will have to formulate issues for determining arising from the grounds of appeal which must be based on the grounds of appeal as no party will be allowed by law to formulate issues for determination outside the grounds. As a corollary, the grounds of appeal must be based on the judgment, that is to say there must not be a disconnect between the grounds of appeal and the judgment. In Niger Construction Ltd vs. Okugbeni (1987) 12 SC 108, the Supreme Court per Nnaemeka-Agu, JSC held:
“I cannot over-emphasize the fact that issues in controversy in every particular appeal are fixed and circumscribed by a statement of the “part of the decision appealed against” whereas the grounds for assault on that issue are settled by the grounds of appeal. So, the grounds of appeal ought strictly to be based on such issues in

controversy. Once an Appellant has specified such an issue or issues in that part of his notice of appeal, he cannot validly depart from them and file grounds of appeal outside the purview of the part stated to be in controversy, unless, of course, the Notice of Appeal is amended. Any ground of appeal framed outside this statement is irrelevant and incompetent.”
The issues for determination are formulated in the brief of argument. For a Court to have jurisdiction or competence to hear an appeal, the above scenario must apply. That is to say, this Court can only hear this appeal if all the stages as mentioned above are complied with in line with the rules of Court. In this instance, the applicable rule is the Court of Appeal Rules 2016. These rules are to be obeyed for any process filed which does not comply with the rules will generally be struck out. See Nwankwo & Ors vs. Yar’Adua & Ors (2010) 12 NWLR (Pt. 1209) 518; Kente vs. Ishaku & Ors (2017) 4 SC (Pt. 1) 136. The rules of Court were not made for fun or as fanciful clothes in a shop for window chopping. The Courts are to jealously guide their rules and to ensure strict

compliance. In Nonye vs. Anyichie & Ors (2005) 2 FWLR (Pt. 268) 1213, the Apex Court per Oguntade, JSC held:
“Having said the above however, it must be borne in mind that even in raising the question of absence of jurisdiction in a Court to hear a cause or matter the procedure laid down in the rules of Court must be followed. It seems to me that an insistence that the applicable rules of Court must be followed in raising a challenge to the jurisdiction of a Court to determine a cause or matter is not a diminution of the importance of the question of jurisdiction but only an adherence to the rule of law. In Solanke v. Somefun (1974) 1 SC 141 at p. 148 this Court per Sowemimo, JSC observed:

“Rules of Court are meant to be complied with and therefore, any party or counsel seeking the discretionary power of a Judge to be exercised in his favour must bring his case within the provisions of the rules on which he purported to make his application. If counsel fail to discharge their duties in that respect, it is but fair and right that a Court should refuse to exercise its discretionary power.”

And at pages 150 – 151, the

Court went on:
“Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of Court that makes for the quicker administration of justice. Some exceptions, for example, amendments of proceedings are provided for, but such exceptions should be resorted to where absolutely necessary.”
See also Musa v. Hamza (1982) 7 SC 118 and Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145.
Rules of Court are in the nature of beacon lights to the parties to a dispute illuminating the path leading to justice. It would in the end result in injustice if it were open to the Court to hold one party bound by the rules while allowing the other to ignore them without good reasons.”
This however should not be taken to a ridiculous stage when the rules if followed would be contrary to the main purpose of the creation and the existence of a Court which is to ensure justice within the context of the law. The caveat therefore is that, when applying the rules of Court, a Court

must always bear in mind that the main and primary duty of the Court is to do justice and, in this instance, substantial justice and not technical justice. See Agunbiade vs. Oluwole Oke & Ors EPR Vol. 10 2013 P. 238; Jimoh Salawu vs. State NSCQR Vol 47 2011 p. 276.
If the strict application of the rules of Court will promote technical justice, a Court is not expected to slavishly follow the rules of Court. See Buhari & Ors vs. Obasanjo & Ors (2003) ANLR 168. I must however hasten to add that the non-compliance with the rule that affect the foundation of the case will be taken very seriously as such will be more than an irregularity. In this respect, the Apex Court per Peter-Odili, JSC in Captain Zakari vs. Nigerian Army & Anor (2015) LPELR-24721(SC) page 26 held:
“The case of Mobil Producing Nigeria Unlimited v. Monokpo (2003) 18 NWLR (Pt. 852) 346; a judgment of this Court per Niki Tobi JSC as he stated:-
“Jurisdiction being a forerunner of judicial process cannot be acquiescence, collusion, compromise, or as in this case, waiver, confer jurisdiction on a Court that lacks it. Parties do not have legal right to

donate jurisdiction on a Court that lacks it. Non-compliance with the rules which affect the very foundation, or props of the case/cannot be treated by the Court as an irregularity by as nullifying the entire proceedings. Once the non-compliance affects the substance of the matter to the extent that the merits of the case are ruined, then, it is impossible to salvage the proceedings in favour of the party in blunder, who in this appeal are the respondents, no amount of waiver by the party can be of assistance to the adverse party. The defence of waiver lacks merit and I so hold.”
The point I am laboring to make is that, while a Court should follow the rules of Court as they are made to promote justice, where the application of same will override and overrule the tenet of justice in its substantial sense, a Court of law and justice will not follow the strict application of the law. This makes sense as the major responsibility of the Court is to ensure the tenet of justice is served. No Court should be a slave to any rule or law which apparently promotes injustice.
Having stated the above legal position, let me sound more specific and relevant as

they apply to this appeal. The first ground of the preliminary objection is as to the competence of the Appellant’s brief of argument and the effect thereof on the appeal. The Respondent’s counsel argument in that regard is that the Appellant did not comply with the rules of this Court in filing the Appellant’s brief in not heading the brief stating the name of the parties and the appeal no. That apart, it is also the argument of counsel that the brief is not signed by the Appellant’s counsel and therefore it is incompetent. On the strength of the above counsel emphatically submitted that the Appellant’s brief is incompetent and therefore should be struck out and the appeal dismissed. If this is correct and if it actually represents the legal position, the notice of appeal will be naked and no naked notice of appeal will be accorded any recognition by a Court, definitely not this Court.
Looking at the Appellant brief filed by its counsel, there is a cover page that addresses the point raised by the Respondent. On the cover page the names of the parties are stated, the Court before which the appeal is filed and the appeal

number is well stated and written. The name of the counsel who settled the brief and the date it is settled was also written. The counsel signed on same with the address of service. All this is followed by the index and then the statement as to the content of the brief. The argument of the Respondent’s counsel is that the cover page is not part of the brief and therefore the brief is devoid of these essential elements of a brief.
This may make technical sense but does it make any legal and substantial sense in the temple of justice. Even if there are rules that the Appellant has broken, is this a fundamental issue as to affect the appeal? Does it touch the foundation of the appeal in such a way that it will amount to injustice to treat it as an irregularity? In this respect Order 1 Rule 3 of the Court of Appeal Rules, 2016 is of importance. The rule states that the proceedings of the Court are to be made in compliance with the rules of the Court. The question therefore, is what is the provision of the rules of this Court vis-a-vis the filing of briefs of argument? The relevant provision in this instance is Order 19 Rule 3. I think it will make

greater sense to quote the whole provision for ease of reference. The rule provides thus:
“-(1) The brief, which may be settled by Counsel, shall contain an address or addresses for service and shall contain what are, in the Appellant’s view, the issues arising in the appeal as well as amended or additional grounds of appeal.
(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.
(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument
(4) All briefs shall be concluded with a numbered summary of the points to raise and the reasons upon which the

argument is founded.
(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarise judgments of the Lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.
(6)(a) Except where the Court directs otherwise, every brief to be filed in the Court shall not exceed 35 (thirty five) pages.
(b) The brief must be prepared in 210mm by 297mm paper size (A4) and typed in clear typographic character. The typeset shall be in Arithmetic Times New Roman or Tahoma of 14 font size with at least single spaces between.
(c) Every brief which does not comply with the page limit and pages size requirements of this Order shall not be accepted by the Registry for filing.” (underlined for emphasis)
I have taken the pain to reproduce the whole of Order 19 Rule 3 to appreciate the argument of counsel to the Respondent but I could not really appreciate it as I cannot see anywhere it is so stated that the cover page of a brief is not part of the brief. Rule 3(1) of Order 19 states what the brief should contain as follows;

the address for service and the issues for determination. The brief is to be concluded with “a numbered summary of the points to raise and the reasons upon which the argument is founded.”
The above are the real conditions that must be satisfied for a brief to be competent before this Court. The other requirements which are not challenged in this appeal are the character of the typing with the font size and the pages required. While I admit that it is conventional to file a brief along the lines stated by the Respondent, I am firm in holding that a brief which complies with the above provision will not be incompetent merely because it did not comply with the conventional and well accepted way of writing and filing briefs. The provision of the rule and the law supersedes any conventional practice. I do not agree with the Respondent that the Appellant’s brief is incompetent as I do not see in any way it violated the provisions of the Court of Appeal Rules. The Respondent’s argument is purely on technicality and that should not prevent this Court from doing justice by looking at the substance of the arguments therein. This is because

it is a settled principle of the law that does not require any authority to the effect that where there is a conflict between technical and substantial justice, substantial justice will prevail as Court exist to promote substantial justice. See Tabik Investment Ltd & Anor vs. GTB (2011) LPELR-3131 (SC); Inakoju & Ors vs. Adeleke & Ors (2007) LPELR-1510 (SC).
To finally kill this ground of objection by the Respondent, it is also not out of place to refer to Order 21 Rule 3(1) which provides that a noncompliance can be waived by the Court to ensure justice is done in the matter. The first ground of the objection in the circumstance fails.

determination on issues 1 and 2 as formulated by the Appellant, that cannot make the appeal incompetent as there is an issue 3 that in my opinion is covered by grounds 2 and 3. In such a situation, a Court cannot hold the brief entirely incompetent. What the Court can do at the best is to strike out those issues and the arguments therein and decide the appeal on the sole ground and issue before the Court. This is because it is trite that a single or sole ground of appeal can sustain an appeal. SeeAlhaji Rasaki Ekunola vs. CBN (2013) 4-5 SC (Pt. v) 43; Mohammed & Anor vs. Lasisi Sanusi Olawunmi & Ors (1990) 2 NWLR (Pt. 133) 458; Chrome Air Service Ltd vs. Fidelity Bank (2017) LPELR-43470 (SC).
Learned counsel for the Respondent in my opinion has stated the correct position of the law which is that the issues for determination must be formulated from the grounds of appeal and any issue for determination which does not flow from the grounds of appeal is incompetent and should be struck out as such issue is valueless and must be ignored. This is trite law that gives no room for double interpretation. It is settled and as clear as the natural law

that day follows night. See Jenkis Gwede vs. INEC (2014) 18 NWLR (Pt. 1438) 56; Ahaji Akere & Ors vs. The Governor of Oyo State & Ors (2012) 12 NWLR (Pt. 1314) 240.
To appreciate the decision I will be making, it will be necessary to reproduce the grounds of appeal and compare with the issues for determination. This may be a repetition but there is nothing wrong for emphasis sake and for completeness. The Appellant grounds of appeal as contained in the notice of appeal found on pages 221-223 of the record reads thus:
“Ground 1:
The Learned Trial Judge erred in law when he refused to set aside its judgment dated the 1st February, 2010 against the Appellant at the Lower Court and therefore occasioned a miscarriage of justice against the Appellant.
Ground 2:
The Learned Trial Judge erred in law when he dismissed the Appellant’s Application holding that there was proper service of the processes on the Appellant prior to the entering of the default judgment in favour of the Respondent and thereby denied the Appellant fair hearing before the Lower Court.
Ground 3:
The Learned Trial Judge misdirected himself in

Law and occasioned a miscarriage of justice against the Appellant when he held inter alia at the Lower Court:
“… That there has been a proper service of the Court process on the 1st Defendant. There is no reason therefore for the setting aside of the judgment of this Court delivered on 1st February, 2010 and the order sought to that effect is refused.”
The Appellant’s counsel in the brief formulated the following issues for determination:
1. “Whether the refusal of the Lower Court to set aside its judgment can be sustained considering the law, the nature of the Respondent’s claim, the circumstances and the fact that the Lower Court had no jurisdiction to entertain the Respondent’s Suit against the Appellant or to grant the default judgment in favour of the Respondent. (GROUND 1)
2. Whether considering the law and the material evidence before the Lower Court, the decision of the Lower Court dated the 24th day of May, 2011 does not amount to a denial of the Appellant’s right to fair hearing before the Lower Court. (GROUND 2)
3. Whether considering the law and the circumstances of this

case, the Lower Court did not occasion a miscarriage of justice against the Appellant when it held that there has been a proper service of the Court process on the Appellant and that there is no reason therefore for setting aside the judgment of the Court entered in favour of the Respondent on 1st February, 2010. (GROUND 3)
From the issues formulated by the Appellant, issues 1 and 2 deals with jurisdiction and lack of fair hearing and necessary extension the doctrine of estoppel. While these are very important and germane issues on appeal and particularly issue 1 which can be raised at anytime, it is the law that an Appellant cannot raise and argue any issue outside the grounds of appeal. This is not acceptable to our judicial system. The reason being that the opposing party should not be taken unawares by the contention of the other party. He should know what he is contending against in the appeal as litigation is not a hide and seek game. It is better when all the cards are placed before the Court and the parties from the beginning. In this respect the case of Newswatch Communications Ltd vs. Atta (2006) 1 ANLR 211, the Apex Court held:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“Litigation is not a matter of planting mines to deceive the opponent with a view to destroying his case undeservedly in limine. On the contrary, litigation is a process where the parties set out their case frankly and fully for the determination of the Court. A trickish and miserly presentation of a client’s case is not part of good advocacy.”
It is against the tenet of justice and the provision of our law that a Court should give recognition to issues for determination which do not flow from the grounds of appeal. This is a complete misnormer which cannot be allowed in any Court. In Okonobor vs. D.E.S.T. Co Ltd (2010) 17 NWLR (Pt. 1221) 181, the Supreme Court expressing this stated that position of the law in these words:
“Issue raised in an appeal must relate to the ground(s) of appeal filed. No issue is allowed to be raised outside the grounds of appeal. In the instant case, issue No. 2 formulated by the appellant did not relate to the single ground of appeal filed. It was therefore incompetent.”
Similarly, the Supreme Court in Ogbe vs. Asade (2009) 18 NWLR (Pt. 1172) 106 held thus:
“It is now

firmly settled that an Appellate Court, deals with issues and not grounds of appeal. See the cases of The Attorney-General of Bendel State & 2 Ors. v. Aideyan (1989) 4 NWLR (Pt.118) 646 @ 664 and Adelaja v. Fanoiki & Anor. (1990) 2 NWLR (Pt.13) 137 @ 148; (1990) 3 SCNJ. 131.
Again, where no issue/issues is or are distilled or raised from a ground or grounds of appeal, such ground or grounds is or are deemed to have been abandoned and should be struck out. See the cases of Osinupebi v. Saibu (1982) 7 SC. 104 @ 110-111; Western Steel Works Ltd & Anor v. Iron & Steel Workers Union of Nigeria & Anor. (1987) 1 NWLR (Pt.49) 284 @ 304; (1987) 1 SCNJ, Ugo v. Obiekwe & Anor. (1989) 1 NWLR (Pt.99) 566 @ 580; (1989) 2 SCNJ, 95 and Ndiwe v. Okocha (1992) 7 NWLR (252) 129 @ 139; (1992) 7 SCNJ. 355 Thus, an issue which has no ground of appeal to support it, is worse than useless.”
The question therefore is, whether the Appellant in the grounds of appeal raised any challenge on jurisdiction and the denial of fair hearing or the doctrine of estoppel? I have looked at the grounds of appeal in this appeal but I cannot see any challenge

on the jurisdiction of the Lower Court or the denial of the fair hearing of the Appellant. With due respect to learned silk, there seem to be a misconception of what is on appeal in this Court. There are two decisions before the Lower Court. One which is the first in time, that is the default judgment of 1/2/2010 and the second is the ruling wherein the Lower Court decided against setting aside the judgment of 1/2/2010 delivered on 24/5/2011. This appeal is against the ruling and not really against the default judgment. Though the relief couched in the appeal seeks for an order to set aside the default judgment and remit the file to another judge, this Court cannot consider the arguments on jurisdiction and lack of fair hearing because they were not stated as grounds of this appeal. In the circumstance, I agree with the Respondent counsel that this Court should discountenance the argument in the Appellant’s brief dealing with the issue of jurisdiction and lack of fair hearing as those issues were not made grounds of the appeal. Similarly, all the argument about the doctrine of estoppel has no relevance to this appeal. The objection of the Respondent

succeeds on that ground. The effect of that success does not imply dismissing the appeal or striking it out because as mentioned above, a single ground of appeal can sustain the appeal. In holding that Issues 1 and 2 are not competent, the only order I am allowed by law to make is to strike them out and by necessary implication, all the arguments based on them on the brief comes to no moment and therefore discountenanced. However, since issue 3 formulated by the Appellant is in line with grounds 2 and 3 of the notice of appeal, I will therefore address issue 3 as formulated by the Appellant as the sole issue for determination. In the circumstance of the whole, the preliminary objection fails and it is hereby dismissed.

The main issue for determination therefore having struck out issues 1 and 2 of the Appellant brief is issue 3, which is as follows:
“Whether considering the law and the circumstances of this case, the Lower Court did not occasion a miscarriage of justice against the Appellant when it held that there has been a proper service of the Court process on the Appellant and that there is no reason therefore for setting aside the

judgment of the Court entered in favour of the Respondent on 1st February, 2010.”

The appeal is against the refusal of the Lower Court to set aside its judgment. In the circumstance, was the Lower Court right? The point must be made that although a Court becomes function officio after delivering a judgment and therefore should not revisit the decision; there are exceptions to this general rule. A Court has the powers to set aside its judgment or decision in some circumstance when there are defects in the judgment which goes to the issue of jurisdiction. See Auto Import Export vs. J.A.A. Adebayo & Ors (2002) LPELR-643 (SC). In Bello vs. INEC (2010) 2 FWLR (Pt. 522) 3603; LPELR-767 (SC), the Apex Court per Adekeye, JSC at pages 78-79 drove home this point in these words:
“A Court has an inherent power to set aside its judgment or order where it has become so obvious that it was fundamentally defective or given without jurisdiction. In such a case, the judgment or order given becomes null and void, thus liable to be set aside. Okafor v. Okafor (2000) 11 NWLR pt. 677 pg. 21, Skenconsult (Nig.) Ltd. v. Ukey (1981)

1 SC pg. 6, Obimonure v.Erinosho (1966) 1 ALL NLR pg. 250. The power of a Court to set aside its judgment is statutory. The Court does not have power enabling it to do so. A Court of concurrent or coordinate jurisdiction can set aside the judgment or order of another Court in circumstances where: –
a) The writ or application was not served on the other party or
b) The action was tainted with fraud or the Court lacks jurisdiction to entertain the action. Lawal v. Dawodu (1972) 8 – 9 SC pg. 83
By the time the Amended Originating Summons was filed, the name of Peoples Democratic Party did not appear on it as a party. The party has no specific interest in the suit, no specific relief was claimed against it and it was no longer necessary to put it on notice not being a party in the suit. It maintained a neutral stance in an action predicted on nomination of its candidates. The judgment delivered on 4th of April, 2007 cannot be a nullity for reason of non-joinder of PDP as a party. Can it in the circumstance be referred to as a default judgment. The High Court Civil Procedure Rules gives the High Court the powers to give judgment in default of pleadings or appearance. Any

judgment in default of pleadings or appearance is not a final judgment since both parties were not heard on the merit of the case. The judgment was obtained by failure of the defendant to follow certain rules of procedure. Where the Court has not pronounced a judgment on merits or by consent, such a judgment may be set aside by any trial Court in the judicial division where the judgment was obtained. Wimpey Ltd. v. Balogun (1986) 3 NWLR pt. 28 pg. 324, Williams v. Hope Rising Voluntary Funds Society (1982) 1 – 2 SC pg. 145 Ugwu v. Aba (1961) 1 ALL NLR pg. 438, Afribank (Nig.) Ltd. v. Owoseni (1995) 2 NWLR pt. 375 pg. 110, Ndika v. Chiejina (2003) 1 NWLR pt. 802 pg. 451.”
The Apex Court per Onnoghen, JSC held the same position in Ugba & Anor vs. Suswam & Ors (2014) 4-5 SC 47 thus:
“It is settled law that the decisions of this Court are final by which is meant that the Court has no jurisdiction to sit on appeal over its decision once delivered. However, the Court has the inherent power to set aside its decisions when same are later found to be a nullity or obtained by fraud. The above power does not extend to sitting on appeal over

its decisions as stated in the case of Igwe vs Kalu (2002) 14 NWLR (Pt.78) 435 at 455 where it is stated as follows: –
“……the inherent jurisdiction of the Court to set aside its judgment cannot be converted to an appellate jurisdiction as though the matter before it is another appeal, intended to afford losing litigants yet another opportunity to re-state or re-argue their appeal. It must be emphasized that this Court is a Court of final resort and under the Constitution, it cannot under any disguise sit on appeal over its judgment or review it except under very exceptional circumstances…”
The exceptional circumstances the Court referred to, supra, are very stringent indeed and are stated at pages 453 – 454 of the case of Igwe vs Kalu supra as follows:-
“I shall state that this Court possesses inherent power to set aside its judgment in appropriate cases. Such cases are;
(i) When the judgment is obtained by fraud or deceit either in the Court or of one or more of the parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave. See Ataka vs Adekunle (1959) L.L.R 76;

Flower vs Liowd (1877) Ch. D 297; Olufunmise vs Falana (1990) 3 NWLR (Pt.136) 1.
(ii) When the judgment is a nullity. A person affected by an order of Court is entitled ex debito justitiae to have it set aside. See Skenconsult Ltd vs Ukey (1981) 1 S.C. 6; Craig vs Kanssen (1943) KB 256 at 262 and 263; Ojiako & Ors vs Ogueze & Ors (1962) 1 SCNLR 112, (1962) 1 All NLR 58; Okafor & Ors vs Anambra State & Ors (1991) 6 NWLR (Pt. 200) 659, 680.
(iii) When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it. See Agunbiade vs Okunoga & Co (1961) All NLR 100 and Obimonure vs Erinosho (1966) 1 All NLR 250.”
The Lower Court therefore will not be offending any law either statutory or case law to set aside the judgment of 1/2/2010 provided this is done within the context of the law, that is if there is a fundamental defect in the judgment which makes the judgment a nullity. One thing that makes a judgment a nullity which is up for consideration in this appeal is if the Court exercise jurisdiction over a matter it has no jurisdiction to handle. The importance of

jurisdiction in a case cannot be overemphasized. The subject of jurisdiction in judicial process is like breath for a human being. Just as there is no life without breath so a Court cannot handle any case without jurisdiction. Any decision arrived at by a Court no matter how brilliant will amount to a nullity and indeed the whole proceeding will amount to a nullity if it is done without jurisdiction. See The Chief of Air Staff & Ors vs. Wing Commander P.E. Iyen (2005) 1 SC (Pt. II) 121; Ndigwe vs. Nwude (1999) 11 NWLR (Pt. 626) 314; Iragbiji vs. Oyewinle (2013) 13 NWLR (Pt. 1372) 516.
It will be a complete waste of time and resources to attempt to hear a matter without the Court having jurisdiction. This is why when the issue of jurisdiction is raised, the Court will first determine same and depending on the decision on jurisdiction, the Court may or may not continue with the case. If the Court holds that it has no jurisdiction, that ends the case before the Court but if the Court has jurisdiction then it will continue to decide the case on the merit.
The jurisdiction of a Court over a person is conferred when the process is served on that person.

A Court cannot exercise jurisdiction on a person to whom the processes of Court has not been served. What confers jurisdiction on a Court is the service of the Court process on all the parties as this gives the party the opportunity to defend the case brought against him. A party who is not served the process against him will be denied fair hearing and this is a good ground to set aside a judgment. This Court in Compact Manifold & Enery Services Limited vs. Pazan Services Nig. Limited (2017) LPELR-41913 per Nimpar JCA held:
“The Court below is empowered by the rules of Court to enter judgment during pre-trial sessions. See Order 10 Rule 3 of the Lagos State High Court (Civil Procedure) Rules, 2012 which allows a Claimant in the absence of a defendant to ask for judgment during pre-trial conference session in a liquidated money claim and the conditions under which such a judgment can be set aside are set out in Order 20 Rule 12 which provides:
Any judgment by default whether under this order or under any other order of these Rules shall be final and remain valid and may only be set aside upon application to the judge on grounds of fraud,

non-service or lack of jurisdiction upon such terms as the Court may deem fit.”
See also Hyppolite vs Egharevba (1998) 11 NWLR (Pt. 575) 598; Delta State Government vs. Okon (2002) 2 NWLR (Pt. 752) 668.
No Court can exercise jurisdiction over a person who is not served with the process of Court. Even if the Court has subject and territorial jurisdiction, if there is no service of the process on the party and the Court goes ahead to hear the case and deliver judgment, the proceeding and the judgment will be a nullity. See Kalu & Anor vs. Gabriel Eke (2004) 2005 (Pt. 259) 1; Tsokwa Motors (Nig) Limited vs. UBA Plc (2008) 2 FWLR (Pt. 425) 3457.
The Appellant’s case is that it was not served with the processes of the case which led to the judgment of 1/2/2010. The processes the Appellant were entitled to be served as required by law are the quit notice, intention to recover possession, the motion for judgment and the hearing notice. The Appellant’s case is that none of these processes were served on her by the Respondent and therefore the judgment against her is a nullity and deserving to be set aside. The Respondent’s counsel

is not challenging that law but rather the fact. In other words, the Respondent’s position is that the Appellant was served. The burden is on it to prove that the Appellant was served with all the processes. One of the ways to prove service is by the filing of affidavit of service. This is not full proof but prima facie proof of service.
Before I look at the facts, it is important to acknowledge that the Appellant is a corporate body and therefore service on such a body must comply with the provisions of the Companies and Allied Matters Act. The CAMA in Section 78 made provision to the effect that service of processes on corporate bodies must comply with the High Court Civil Procedure Rules applicable in that state. See Nigerian Bottling Company Plc vs. Chief Uzoma Ubani (2014) 4 NWLR (Pt. 1398) 421; Dr N.E. Okoye & Anor vs. Centre Point Merchant Bank Limited (2008) 7-12 SC 1; Kraus Thompson Organisation Limited vs. University of Calabar (2004) 4 SC (Pt. 1) 65.
In the circumstance, the relevant provision for service in the case in this appeal is the Order 7 Rule 9 of the High Court of Lagos State (Civil Procedure) Rules. By this provision,

service on a corporate body such as the Appellant, must be delivered to a director, secretary, trustee or other senior, principal or responsible officer of the organization or by leaving it at the registered, principal or advertised office or place of business of the organization within jurisdiction. SeeFBN Ltd vs. Njoku (1991) 3 NWLR (Pt. 384) 457; NBC Plc vs. Ubani (2014) 14 NWLR (Pt. 1398) 421; Skye Bank (Nig) Plc vs. Okpara (2015) 17 NWLR (Pt. 1489) 613.
The provision of the law both statutory and case law on service on a company is as stated above. The officers of the company that need to be served the processes for it to be valid in the first instance are the Director, the Secretary of the company or the trustees. The secretary referred here in my opinion is not any secretary working in the company but rather the Company Secretary. I am firm in this position because the class of officers mentioned cannot be interpreted in any stretch of imagination to mean any confidential secretary. Such a confidential secretary is not in the class of Director or Trustees. Apart from those officers, other persons that can be served in the company which will amount

to proper service are senior, principal and responsible officers of the company. This leaves room for different interpretation as to who are senior, principal and responsible officers of the company. The category of staff which will fall into this class is not stated or defined in the law. The reasonable deduction will be that such staff should be management or senior staff of the company. The term responsible will be interpreted along the terms of senior and principal staff of the company. This is based on the rule of interpretation that once general word follows specific words, the general word will be interpreted along the line of the specific words. See Inakoju & Ors. vs. Adeleke & Ors. (2007) LPELR-1510 (SC); Kraus Thompson Organisation vs. N.I.P.S.S (2004) LPELR-1714 (SC).
A confidential secretary in my opinion also does not fall into this category. However, service to a confidential secretary in the company will be valid if such service can be proved to have been given to the confidential secretary in the premise of the company. The Lagos State High Court Civil Procedure Rules provides that process left at the place of business of the

company will be good service. It follows therefore that if the Respondent could prove that the processes were left at the place of business or the registered and advertised office of the company that will amount to proper service. There is a lot of room that the Respondent could play with to prove service of the processes as mentioned above.
The Appellant has denied service of the processes on it, the duty or the burden to proof that the Appellant was served rest on the Respondent who is alleging that there was service. This is the law. See Barrister Ismaeel Ahmed vs. Alhaji Nasiru Ahmed & Ors (2013) LPELR-21143 (SC). The Respondent needs to show service by whatever means, however, the affidavit of service though not conclusive proof of service, is prima facie proof that there was service. When the Respondent has successfully shown service in the affidavit evidence, the burden shift to the Appellant to show it was not served.
Now, it is time to look at the evidence of service in determining whether the appeal will succeed. As mentioned earlier the Respondent needs to prove that the following processes where served on the Appellant, namely; the

quit notice made on 2/2/06, intention to recover possession made on 13/5/09, the originating process of 28/5/2009 and the motion for judgment of 12/11/2009. The quit notice, the intention to recover possession and the motion of judgment are found on pages 31, 32 and 42 respectively of the records of appeal. The originating process filed on 28/5/09 is found on pages 1-33 of the record. I have gone through the record of appeal and I make bold to say that there is no evidence of the service of the quit notice and intention to recover possession. These notices were claimed to have been served by the Respondent on the Appellant, there is no such evidence before the Lower Court. That apart and most importantly, the originating process was purportedly served on 18/6/2009. The affidavit of service made on 2/7/2009 by the sheriff of Court disclosed that the originating process was served on the Appellant on 18/6/2009. This was served on Mary Edu at No 54/56 Board Street. Before the service, the sheriff never knew Mary Edu. He also did not state the name of any pointer as required in the affidavit of service in a situation where the sheriff does not know the person to

be served before that time. How did he know who she was in the company to have been served the originating process? He did not even state who she is or was in the company. Apart from the affidavit of service, there is nothing more to show that service was received by the Appellant or made to the Appellant. In view of the defects in the affidavit of service, the Respondent needed to have produced more evidence to show that the Appellant was actually served with the process.
As if that is not enough, there is yet another defect with the proof of service of the motion for judgment. The Respondent filed the motion for judgment because the Appellant did not file any process. It is therefore very important that the motion for judgment be properly served before any judgment can be entered. This is more so that there was a five months gap between when the originating process was purportedly served and when the motion for judgment was filed. This time the affidavit of service of the motion for judgment showed that the service was made on the company at 54/56 Board Street, Lagos. Again, the sheriff said in the affidavit that he never knew the company but there is

no pointer. How then did he come to know where to serve the company. The Affidavit did not disclose who the process was left with at the office of the Appellant. The most damaging of the evidence of service is that the Respondent did not show that the motion that was purportedly served had a hearing date. The motion for judgment found on page 49 of the records has no hearing date fixed on it. This means that even if I hold that the motion for judgment was served, which I cannot so hold in the light of the evidence disclosed in the record of appeal, I still cannot hold that the Appellant can be found liable for neglecting the Court because the motion did not contain a date for the Appellant to know when to come to Court. The only remedy would have been to serve the Appellant with the hearing notice stating a date that the motion will be heard. There is no such hearing notice. The implication of all this is that, the Appellant was not served with the relevant processes before judgment was entered by the Lower Court. In the circumstance, I have no difficulty in resolving the 3rd issue of the Appellant which turned out to be the sole issue in this appeal in favour

of the Appellant.
In the circumstance, the Lower Court ought to have set aside the default judgment it delivered on the 1/2/2010 as there is no proof of the service of the processes on the Appellant. The inability to prove service of the processes deprived the Lower Court jurisdiction over the Appellant. This appeal succeeds and it is hereby allowed. The Ruling of the High Court of Lagos State delivered on 24/5/2011 by Hon Justice E.A. Adebajo in Suit No: BD/46/2009 – Jerry and Kos (Nig) Enterprises Ltd vs. African Petroluem Plc & Anor is hereby set aside. As a consequential order, the default judgment of the Lower Court is also set aside. The Chief Judge of Lagos state is hereby ordered to reassign the case to another judge for accelerated hearing.
I award N200,000 (Two Hundred Thousand Naira) cost in favour of the Appellant against the Respondent.

TIJJANI ABUBAKAR, J.C.A.: I read the comprehensive leading Judgment prepared and rendered in this appeal by my learned brother Ebiowei Tobi, JCA.

I endorse the reasoning and conclusion and adopt the Judgment as my own. I have nothing extra to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have read the lead judgment of my learned brother, Ebiowei Tobi JCA, and I agree with his reasoning and the conclusion reached therein. I also abide by the order for cost.

Appearances:

C.V.C. Ihekweazu (SAN) appears with him, R.N Onwuka Esq., and R.W. Nwanguma Esq., For Appellant(s)

Chris Mbajika Esq., For Respondent(s)