AFRICAN TIMBER & PLYWOOD NIGERIA LIMITED & ORS V. CHIEF WARRI OGODO & ANOR
(2013)LCN/6401(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of July, 2013
CA/B/250/2003
JUSTICES:
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
1. AFRICAN TIMBER & PLYWOOD NIGERIA LTD.
(Now UAC of Nigeria Plc)
2. OKPE COMMUNAL LAND TRUSTEE
3. THE ATTORNEY – GENERAL & COMMISSIONER FOR JUSTICE, DELTA STATE. – Appellant(s)
AND
1. CHIEF WARRI OGODO
2. CHIEF WONDER OGODO
(For themselves and on behalf of Ogodo Family of Sapele) – Respondent(s)
RATIO
WHETHER OR NOT SERVICE OF COURT PROCESSES CAN BE AN ASSUMED EVENT
It is settled that service of a process of court such as an initiating process like a Notice of appeal on a party directly affected by the appeal, cannot be an assumed event. Hence, it is incumbent on the appellant/respondent who asserted the fact of the service of the Notice of appeal on the respondents/applicants, personally at Ogodo Quarters, Sapele to prove that fact. S. 131(1) & (2) Evidence Act, 2011. The proof of service of a court’s process on a party in an action or appeal, is usually by means of an affidavit of service except where there is an admission by the party concerned that he was duly served with the process of court, in question. The court is bound to accept and rely upon the act of service and the information given to it by the registrar of the court where such an act or information is backed by the contents of the processes filed and the endorsement of service thereon as contained in the court’s case file, for a smooth running of the state of affairs in the administration of justice in the courts.
Chief J. Olorunyolemi & Anor V. Mrs. Helen Akhagbe (2010) 2 SCNJ 318 at 326; Tsokwa Motors (Nig) Ltd V. UBA, Plc (2008) 2 NWLR (pt. 1071) 347 at 352 – 353; African Continental Bank Plc V. Osada Nig. Ltd. & Ors. (1995) 7 NWLR (pt. 405) 25 SC; Okoye V. Centre Point Merchant Bank Ltd. (2008) 7 SCNJ 153.
I have perused the deposition by Godspower Idahosa at paragraph 6 of the appellant/respondent’s counter affidavit of 28th October, 2009 that:
“6. After the leave of this Honourable court was granted, the Notice and grounds of appeal dated 28th May 2004 and filed on 2nd June 2004 was addressed to Chief Wonder Ogodo, one of the applicants in this application. A photocopy is exhibited as exhibit ‘UAC3’. PER YAKUBU, J.C.A.
TOM SHAIBU YAKUBU, J.C.A (Delivering the Leading Judgment): The Respondents/Applicants who were plaintiffs in Suit No. S/67/76 at the then Bendel State High Court of Justice Holden at Sapele had claimed some declaratory reliefs and compensatory damages against the Appellant/Respondent along with two others in respect of a parcel of land situate at A.T & P area in Sapele. The action was hotly contested and at the end, judgment was entered in favour of the respondents/applicants. The appellant/respondent herein, who was the 1st defendant at the court below, was not being satisfied with the aforesaid judgment, appealed to this court, against it. The other two defendants, that is, Okpe Communal Lands Trustees and the Attorney General & Commissioner for Justice, Delta State respectively, did not appeal against the aforesaid judgment.
On the 22nd September, 2003 and at the instance of the respondents/applicants,the appellant’s notice and grounds of appeal was struck out by this court, “for being incurably defective.”
The appellant, in an application dated 23rd December,2003 sought for leave for an extension of time within which to apply for leave to appeal. The hearing notice dated 21st January, 2004 with respect to the application was served on John Alele & Co.,Solicitors of No.19 Warri/Sapele Road, Warri, Delta State, for the respondents/applicants. This was on 27th April,2004. The appellant/respondent’s application was heard in the absence of the respondents/applicants on 10th May,2004 by this court and granted. Consequently, the appellant/respondent filed a Notice and grounds of appeal at the court below, on 2nd June, 2004.
In this application made pursuant to Order 3, Rules 2(7), 3(1) and 5(1) of the Court of Appeal Rules, 2002; Section 97 & 99 of the Sheriffs and Civil Process Act, Cap. 407 Laws of the Federation of Nigeria, 2004; and under the Inherent Jurisdiction of this Honourable court, the respondents/applicants, prayed for the following order:-
“1.AN ORDER SETTING ASIDE SERVICE of the Hearing Notice dated 21st day of January, 2004 and all process attached, Road, Warri, on the 27th day of April 2004 for the hearing of Motion on Notice for Extension of time for leave to appeal;
2. AN ORDER SETTING ASIDE the order of this Honourable Court dated 10th day of May 2004 made in favour of the Appellant/Respondent extending time for them to apply for leave to appeal against the judgment of the Sapele High Court dated 17th July, 1984; granting leave for them to appeal against the said judgment and file their Notice and Grounds of Appeal within 30 days and to use the Record of Proceeding complied for Appeal No. CA/B/73/2000;
3. AN ORDER STRIKING OUT the Notice and Grounds of Appeal filed in the Court below by the Defendant/Appellant on the 2nd day of June 2004 and all other processes in this appeal; upon the grounds hereinafter stated.
FURTHER TAKE NOTICE that the Plaintiffs/Respondents/Applicants shall at the hearing of this application rely on all processes already filed by the Defendant/Appellant/Respondent herein. AND FOR SUCH FUTHER ORDER or other order(s) as the Honourable Court may deem fit to make in the circumstances. GROUNDS UPON WHICH THE APPLICATION IS BROUGHT
(a) The appeal No. CA/B/250/2003 was not commenced by due process of law.
PARTICULARS
I. The Plaintiffs/Applicants were not invited and did not take part in any meeting to settled records in the court below, and were not served with any Record of Proceedings in Appeal No. CA/B/73/2000 before it was struck out on the 22nd day of September 2003.
II. After Appeal No. CA/B/250/2003 was struck out for being incurably defective on the 22nd day of September 2003, the plaintiff/Applicants were not aware of the proceedings in this appeal until the motion for enlargement of time within which the applicants may file their brief of argument was served on the 2nd Plaintiff/Applicant.
III. Motion for Extension of time for the Defendant/Appellant to apply for leave to appeal was not served personally on the Plaintiffs/Applicants being the party affected.
IV. John Alele & Co. on whom the originating process in this appeal was purportedly served are not the party affected and did not have the authority of the Plaintiffs/Applicants to accept/receive service of the said process(e)s on their behalf.
V. The Notice and Grounds of Appeal filed in the court below by the Appellant/Respondent on the 2nd day of June 2004 were not served on the Plaintiffs/Applicants.
(b) The Notice of Appeal filed by the Respondents on 2nd June,2004 is incompetent.
PARTICULARS
I. Execution of the judgment being appealed against was STAYED on the 24th day of September 1984. In spite of this the Defendant/Appellant/Respondent preceded to partition, survey, sell/transfer and handover same to third parties without the consent and permission of the Plaintiffs/Respondents/Applicants.
II. During the pendency of Appeal No. CA/B/73/2000 which was struck out on the 22nd day of September 2003, the Appellant/Respondent applied to the 3rd Respondent who purportedly granted the Appellant/Respondent Right of occupancy over the subject matter of the appeal.
III. During the pendency of Appeal No. CA/B/73/2000 which was struck out on the 22nd day of September 2003, the Appellant/Respondent disposed off the subject matter of the Appeal to the 3rd Respondent for N400, 000,000.00 (Four Hundred Million Naira) considerations on the 11th day of August 2003.
IV. The act of selling/transferring and of handing over the subject matter of the Appeal by the Defendant/Appellant/Respondent to third parties is larcenous as it has deprived the Plaintiff/Respondent/Applicants of their proprietary right to enjoy the fruit of the judgment.
V. The acts of the Respondents are overreaching the Applicants’ right to enjoy the fruit of the judgment.
VI. As at 2nd day of June 2004, there was no subject matter for the Appellant/Respondent to appeal against.
(c) The Notice of Appeal filed by the Respondent on 2nd June, 2004 is brought malafide and constitutes a gross abuse of court process.
(d) The Court of Appeal has no jurisdiction to entertain this appeal.”
There is an affidavit of 34 paragraphs with 16 documentary exhibits attached thereto, in support of the application. Thereafter, the respondents/applicants, filed a Further Affidavit of 06 paragraphs with 04 documentary exhibits, in support of the application.
Furthermore, there is a 2nd Further Affidavit in support of the application by which the learned counsel to the respondents/applicants deposed, that he erroneously predicated this application on the 2002 rules of this court instead of the 2007 rules of the court and also that the reliance on Section 97 and 99 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation was in error. Therefore, he deposed that the application is now pursuant to Orders 2, rules 6 & 8; 6 rules 6 & 8;8 rules 2 & 5; 18 rule 11(1) and 19 rule 5 of the Court of Appeal Rules, 2007 and under the inherent jurisdiction of this court.
The appellant/respondent in opposing this application, filed a counter-affidavit of 11 paragraphs and also a Further-Counter Affidavit of 10 paragraphs and attached thereto 04 documentary exhibits.
In compliance with the order of this court, learned counsel to the parties, each filed written addresses with respect to this application. Learned counsel S.C. Odoh, Esq., for the respondents/applicants written address dated 18th March, 2010 was filed on 19th March, 2010. In it, four issues were posited for determination, thus:
“(a) Whether Appeal No. CA/B/250/2003 was commenced by due process of Law?
OR ALTERNATIVELY:
Whether the order made by this Honourable Court on the 10th day of May 2004 granting the Defendant/Respondent leave to appeal out of time, etc, in the absence of the Plaintiffs/Applicants is valid?
(b) Whether Notice and Grounds of Appeal filed by the Appellant on the 2nd day of June 2004 pursuant to order of this Court dated 10/5/2004 is competent or does constitute a valid Notice of Appeal?
(distilled from Ground (b) (I – VI)
OR ALTERNATIVELY:
Whether as at 2nd day of June 2004, the Appellant/Respondent had the competence to appeal against the judgment of then Bendel State High Court of Justice, Sapele Judicial Division in Suit No. S/67/75 when during the pendency of Order of Stay of Execution granted in its favour, it partitioned, obtained Certificate of Occupancy in respect of and sold to third parties the subject matter of the said judgment?
(c) Whether the Notice and Grounds of Appeal filed by the Appellant/Respondent in the lower court on the 2nd day of June 2004 is not AN ABUSE OF COURT PROCESS? (Distilled from Ground (c))
(d) Whether this Honourable Court has jurisdiction to entertain this Appeal? (Distilled from Ground (d))”
Learned Senior Counsel, O.A. Omonuwa, SAN, for the appellant/respondent, pursuant to the order of this court sought and obtained, filed a Further Amended Written Address dated 13th April, 2011 on the same date.
He identified two issues for determination, therein, to wit:
“(1) Whether the Court of Appeal Rules 2007 apply to resolve the issues raised in this motion just because it was dated by the applicants on 9th July, 2009 and filed on 20th July, 2009?
(2) Whether the Appeal No. CA/B/250/2003 was commenced by the process of law?
In response to the appellant/respondent’s further amended written address, learned counsel to the respondents/applicants, filed a Reply on points of law, dated 12th April, 2011, on same date.
Having perused the application and the grounds upon which it is anchored, vis-a-vis the issues formulated for determination by each counsel to the parties, I am satisfied that the two issues formulated by the learned Senior Counsel to the appellant/respondent are apt and will be considered for the determination of this application.
Issue 1: Whether the Court of Appeal Rules 2007 apply to resolve the issues in this motion just because it was dated by the applicants on the 9th day of July and filed on the 20th day of July, 2009?
It is the contention of the learned senior counsel to the appellant/respondent that as at the 23rd day of December, 2003 when the appellant filed the motion on notice for leave to appeal, the applicable Court of Appeal Rules were the Court of Appeal Rules, 2002. Therefore, according to him, it is the 2002 rules of this court that was in force and applicable and not the 2007 rules of this court which had not yet been made. Hence, the 2002 rules of this court had its full life until it was repealed by the 2007 rules. He relied on Section 6(1) of the Interpretation Act and Lakanmi V. Adene (2003) 10 NWLR (pt. 828) 357; Chief Denis C. Osadebay V. The Attorney-General of Bendel State (1991) 1 NWLR (pt. 169) 525 at 580 – 581.
He urged that the submissions of learned counsel to the respondents/applicants in reliance on the Court of Appeal Rules 2007, be discountenanced.
Learned counsel to the respondents/applicants, at paragraphs 3 to 4.3 of his reply to the appellant/respondent’s learned senior counsel on this issue, submitted that the provisions in the 2007 rules of this court which he relied on are in pari materia with the provisions of the 2002 rules of this court. He referred to certain provisions in the two rules of this court to buttress his position and that in any event, his reliance on the 2007 rules has not prejudiced the appellant/respondent as it has not occasioned any miscarriage of justice. Hence, according to him, a non-compliance with the rules is prima facie, an irregularity which does not render a proceeding a nullity. He placed reliance on Atamgba V. Effimi (2001) FWLR (pt. 58) 1158 at 1169; Progress Bank Plc. V. Contact Point Holdings Ltd. (2001) FWLR (pt. 52) 2093 at 2105.
Furthermore, learned counsel to the respondents/applicants submitted that where a party seeks a relief from a court, but under a wrong law or rule of court, the court in doing substantial justice, would still consider and determine the application on its merits. He referred to Governor of Ekiti State V. Ojo (2006) All FWLR (pt. 31) 1298 at 1317; Maja V. Samouris (2002) FWLR (pt. 98) 818 at 836 – 837 & 841.
It is noteworthy that in bringing this application, the respondents/applicants, had anchored it on Order 3 rules 2(7), 3(1) and 6(1) of the Court of Appeal rules, 2002. This was as at 20th July, 2009 when the application was filed. However, on the 8th March, 2010, the respondents/applicants, through their counsel, S.C Odoh, Esq., filed a 2nd Further Affidavit in support of their motion, to the effect that he “inadvertently/erroneously stated and refer (sic) (referred) to the Court of Appeal Rules, 2002 instead of the Court of Appeal Rules 2007 as the Rules i am relying on.” Consequently, the respondents/applicants’ written address prepared and filed by S.C. Odoh, Esq., of counsel, on 19th March, 2010 was premised on Orders 19 rules 5 (1) & (2); 2 rules 6 & 8; 6 rules 6 & 8; 8 rules 2 & 5; 18 rule 11(1) of the Court of Appeal Rules, 2007 and Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999; and under the inherent jurisdiction of this court.
Let me hasten to say a word with respect to the impropriety of the deposition to the 2nd Further Affidavit in support of the motion, by Samuel Chukwuemeka Odoh, Esq., of counsel to the respondents/applicants. He was the same counsel who filed the application/motion on notice for the respondents/applicants. He is the same counsel handling the said application. And yet, he is the deponent to the 2nd Further Affidavit in support of the motion on motion.
I am clearly of the considered opinion that learned counsel has by his deposing to the 2nd Further Affidavit aforementioned, in an application that he is personally handling, unwittingly turned himself into a potential witness for the respondents/applicants. It is indeed an awkward position he has placed himself. It ought not to be so.
It is imprudent. Obadara V. President, Ibadan West District Grade 3 Customary Court (1965) NMLR 39; Hon. V. Richards (1963) NNLR 67; Egevafo Ekpeto & Ors. V. Ikono Wanogho & 4 Ors (2005) All FWLR (pt. 245) 1191 at 1204 (SC).
The apex court, most recently condemned such a practice in Hon. Abubakar Bala V. Mr. Musa Dikko & Ors. (2013) 4 NWLR (pt. 1343) 52 at 60 per my Lord Mohammed, JSC to the effect that:
“Although, learned counsel to the appellant claimed that the motion was signed by Aderogba of counsel who also deposed and signed the affidavit in support of the motion, there is no evidence from any paragraph of the affidavit supporting the claim of the learned counsel. In any case, even if that were the position, it would have been unethical and quite contrary to the Rules of Professional conduct in the Legal Profession for Aderogba of counsel to have filed the motion and also at the same time pose as a vital witness in the affidavit in support of the case of his client, the applicant now appellant.”
I, think that the admonition is clear and succinct. A word is enough for the wise!
Now, paragraphs 3, 4 and 6 of the 2nd Further Affidavit aforesaid, are not statements of facts, but of law. They are argumentative. They have no place to occupy in an affidavit. They are each struck out. See Section 115(2) of the Evidence Act, 2011. National Institute for Policy and Strategic Studies (NIPPS) & Anor V. Fabian Osigwe & Anor (2008) 6 NWLR (pt. 1083) 239 at 251 & 252; U.A.C. Nig. Ltd Global Transport S.A. (1996) 5 NWLR (pt. 448) 291 at 298; Chief J.A. Sani & Anor V. Commissioner of Police Edo State & Anor in Re: HIS ROYAL HIGHNESS, E.A. SAIKI, THE OTARU OF IGARRA; Unreported decision of this court dated 11th December, 2012.
I am satisfied that the remaining paragraphs of the said affidavit cannot support it, so it is of no use and I, accordingly discountenance it, in my consideration and determination of this application.
Indisputably, the applicable rules of this court to be considered and applied in the determination of this application are the Court of Appeal Rules 2002 and not that of 2007. Therefore, it is the relevant orders and rules of the 2002 Rules that will be assessed and applied in the determination of this application.
Issue 2: Whether the Appeal No. CA/B/250/2003 was commenced by due process of law?
It is the contention of learned senior counsel to the appellant/respondent that it was the law firm of John Alele & Co. that filed a motion on notice dated 27th January, 2003 which sought for an order of this court to strike out the appellant/respondent’s Notice of Appeal which was filed on 18th July, 1984 and also the latter’s application dated 24th April, 2002 for leave to file additional grounds of appeal with respect to the appeal No. CA/B/73/2000, hence the said Notice of Appeal was struck out by this court on 22nd September, 2003. Therefore, since the law firm of John Alele & Co. of No. 19 Warri/Sapele Road, Warri, represented the respondents/applicants in the course of the proceedings in this court and had provided the law firm’s address for service of processes on the respondents/applicants, that same address served as their address for service in all matters concerning the application for extension of time for appellant/respondent to apply for leave to appeal against the judgment in question. He referred to Orders 1 rule 3(6); 3 rules 6(2) and 7(1) & (4); Mohammed V. Husseini (1998) 14 NWLR (pt. 584) 108; Cross River Basin & Rural Development Authority V. Sule (Baba) Ali Sule (2001) 6 NWLR (pt. 708) 194 at 205. He insisted that the address for service of processes in respect of the appellant/respondent’s application for extension of time to appeal which was served on John Alele & Co. at 19 Warri/Sapele Road on 27th April, 2004 for the respondents/applicants, remained their valid address for service until formally changed by them and notified to all the parties concerned. He also relied on Chief Ogwu J. Onoja’s book titled: Court of Appeal Rules (Practice and Procedure) 2010 at page 13 paragraph 2/5 thereof, where the learned author opined that: “as a general rule personal service on a party is disallowed where that party has a solicitor. That the only method of service in such a situation is service on the solicitor.” The learned author also referred to the Supreme Court Practice 1999 Vol. 1 at page 1303, to the effect that where a party changes his solicitor, the notice of such a change must be lodged and served in accordance with the rule, otherwise “the former solicitor is regarded as a solicitor of the party until he has indicated in writing that he has ceased to act as the party’s solicitor.”
The learned senior counsel to the appellant/respondent furthermore, submitted that John Alele & Co. of No. 19 Warri/Sapele Road, Warri, having acted for the respondents/applicants in an earlier proceeding with respect to the appellant/respondent’s application for leave to appeal, had an obligation under Order 1 rule 3(5) to have informed the Registrar of this court that he was no longer representing the respondents/applicants and that the latter themselves had an obligation to comply with Order 3 rule 7(a) which they too did not, just as the law firm of John Alele & Co. did not comply with order 1 rule 3(5). He relied on First Bank of Nigeria Plc. V. T.S.A. Industries Ltd. (2007) 17 WRN 40 at 79 – 80.
It is the further submission of Mr. Omonuwa, SAN, that Exhibits “UAC1” and “UAC2” attached to the further counter-affidavit indicate that whilst the respondents/applicants were both present at the settlement of records, their counsel at the time, Chief J.A. Ororho & Co. were pursing the record of appeal for them. He relied on Dr. Alphonsus Ojo V. Independent National Electoral Commission & Anor (2008) 13 NWLR (pt. 1105) 577 at 623.
With respect to the service of the Notice of Appeal, learned senior counsel submitted that Exhibit “UAC3” attached to the counter-affidavit by the appellant/respondent, shows that on the Notice of Appeal was endorsed the respondents’/applicants’ address at Ogodo Quarters Sapele. And that in any event since the respondents/applicants were duly served with the motion on notice for extension of time within which to file an appeal in compliance with the rule of court, the 1st respondent/applicant had become aware that time had been extended for Notice of Appeal to be filed, therefore according to him, the said Notice of Appeal had in fact been communicated to the respondents/applicants, and they are on notice as to the existence of the Notice of Appeal. It is his further contention that the appellant’s right of appeal cannot be fettered by technicalities. He referred to Michael Ezeonu V. Azubike Agheze (1990) 4 NWLR (pt. 187) 646; N.A.B. Kotoye V. Mrs. F.M. Saraki & Anor. (1991) 8 NWLR (pt. 211) 638 at 648.
With respect to the second ground of the application that the Notice of Appeal filed by the appellant/respondent on 2nd June, 2004 is incompetent, learned senior counsel at paragraph 5.17 of his written address contended that the particulars under the said second ground of the application “are utterly irrelevant at this stage and should be discountenanced” because according to him, “this court cannot engage in hearing such argument and resolve the same in a situation where the only issue is whether the processes filed towards commencing an appeal were properly served or not on the applicants.”
Learned senior counsel submitted that the courts are enjoined to keep within the issues that arise for determination of the matter before them. He relied on Ogida V. Oliha (1985) 1 NWLR (pt. 19) 789 Sc, Olujitan V. Oshotoba (1992) 5 NWLR (pt. 241) at 326 CA; Emecheta V. Ogueri (1997) 8 NWLR (pt. 516) 323 CA. And that a matter is in issue when properly raised as an issue and is relevant for deciding a disputed question, putting reliance on Overseas Construction Ltd V. Creek Enterprises Ltd. (1985) 3 NWLR (pt. 13) 407; hence a court will not deal with any issue which is not properly before it. He relied on Ebba V. Ogodo (1984) 1 SCNLR 372 at 385; Adeleke V. Asemota (1990) 3 NWLR (pt. 136) 94 at 112.
Learned senior counsel for the appellant/respondent did not therefore, profer any argument with respect to grounds (c) and (d) of the application.
Learned counsel to the respondents/applicants, argued issue 1 with respect to whether or not the Appeal No. CA/B/250/2003 was commenced by due process at paragraph 6.1 of his written address.
It is noted that the submission of learned counsel on this issue is largely predicated on the 2007 Rules of this court, and having found that it is the 2002 Rules of this court, that is material for the determination of this application, I do not consider it expedient to rehash his submission as anchored on the 2007 Rules of this court. It suffices for me to say that the gravamen of the complaint of the respondents/applicants is that the non-service of the motion for Extension of time for the appellant/respondent to apply for leave to appeal; the hearing notice of the said application; the order of this court granting leave to the appellant/respondent to appeal out of time and the Notice and grounds of Appeal are fundamental procedural defects which go to the root of the appeal. Furthermore, that the failure to serve the motion for extension of time for leave to appeal together with hearing notice thereof on the respondents/applicants tantamount to breaches of their constitutional right to fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, hence the order of this court made on 10/5/2004 is invalid, null and void. He placed reliance on Odutola V. Kayode (1994) 14 LRCN 1; Wema Bank Nig Ltd V. Odulaja (2000) FWLR (pt. 17) 138; Ogunmola V. Kida (2002) FWLR (pt. 86) 557.
Furthermore, respondents/applicants’ learned counsel, in his Reply on points of law, at paragraphs 4.4 -5.3 thereof contended that since the appellant/respondent endorsed on the Notice and Grounds of Appeal dated 28th May, 2004, and filed on 2nd June, 2004; the respondents/applicants’ address for service as “Ogodo Quarters, Sapele,” the said “Notice and Grounds of Appeal ought to have been served personally on the NAMED PARTY and not on a counsel whose services may not be retained by the named party.” He said the authority of Cross River Basin & Rural Development Authority V. Sule (Baba) Ali Sule (supra) relied upon by the learned senior counsel to the appellant/respondent, is inappropriate. He submitted that as soon as the Notice of Appeal by the appellant/respondent was struck out on 22nd September, 2003, the services of John Alele & Co., ended and the respondents/applicants had no obligation to inform the Registrar of the court of that fact since there was no pending application in respect of that appeal again, in court. That it was the duty of the appellant/respondent who initiated a fresh appeal and who by virtue of Exhibit “UAC 4” had knowledge of the respondents/applicants’ address for service to endorse the same on their Notice of Appeal and serve it personally on the party named therein.
Learned counsel insisted that the appellant/respondent’s Notice of Appeal was not personally served on the respondents/applicants and there is no affidavit of service that the said notice of appeal was personally served on them at their “Ogodo Quarters, Sapele” address. He referred to Order 1 rule 3(6) of 2002 Rules of this court and that the non-compliance with it by the appellant/respondent, is fatal to the notice of appeal. He relied on In Re Mbamalu (2002) FWLR (pt. 85) 246; Kisari Investment Ltd. V. La-Terminal Co. Ltd. (2001) FWLR (pt. 66) 766; Dauphin Nig. Ltd. V. M.A.N. (2001) FWLR (pt. 47) 1127); NIPPS V. Krans Thompson Nig. Ltd. (2001) FWLR (pt. 45) 702; Uwah Printers (Nig) Ltd. V. Umoreen (2001) FWLR (pt. 42) 19.
With respect to the 2nd ground of the application, Mr. Odoh, submitted that since the appellant/respondent does not contest or controvert the depositions in the respondents/applicants’ affidavit relating to the said 2nd ground of the application, the former has accepted the facts deposed to by the latter as being correct. He relied on In Re Odutola (2002) FWLR (pt. 119) 1624.
Let me first deal with the issue as canvassed by both parties with respect to whether or not the appeal No. CA/B/250/2003 was commenced by due process of law.
Order 1 rule 3(6) of the Court of Appeal Rules 2002, provides, inter alia:
“Except as may be otherwise provided in these Rules or in any other written law, no notice or other written communication in proceedings in the Court need be served personally except the notice of appeal:
Provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.”
Generally, under Order 1 rule 3(6), processes of court needed not to be served personally on a party in the proceedings, except the notice of appeal. In other words, whereas, the notice of appeal was to be personally served on a party named in the notice of appeal, other processes with respect to the appeal, such as an application for extension of time for the appellant/respondent herein to apply for leave to appeal against the judgment of 17th July, 1984 in respect of the suit No. S/67 /75 needed not to have been personally served on the respondents/applicants. It is not disputed that the appellant/respondent’s motion on notice for extension of time for leave to appeal was fixed for hearing on 10th May, 2004 and the hearing notice for it dated 21st January, 2004 was served on John Alele & Co., at No. 19 Warri/Sapele Road, Warri, on 27th April, 2004. It is also not in dispute that the firm of John Alele & Co, aforementioned, had prior to the filing of the appellant/respondent’s application for extension of time to appeal, applied and at its instance for the respondents/applicants, on 27th January, 2003, prayed for an order of this court to strike out appellant’/respondent’s Notice of appeal earlier filed on 18th July, 1984. The said respondents/applicants’ application was granted by this court on 22nd September, 2003 whereby the then Notice of Appeal was struck out.
In the circumstances, the firm of John Alele & Co. was not a stranger but a participant at the earlier proceedings in this court, with respect to the appellant/respondent’s appeal and the application for extension of time for it to appeal against the judgment of 17th July, 1984 on Suit No. S/67/76. Hence the respondents/applications were duly served with the hearing notice dated 21st January, 2004, for the hearing of the appellant/respondent’s application for extension of time for leave to appeal, on 27th April, 2004 through the same John Alele & Co, at No. 19 Warri/Sapele Road, Warri. And since the respondents/applicants were not in court on 10th May, 2004, when the application was heard and granted, the said order of this court was validly made and issued, hence it is not liable to be set aside.
I have considered paragraph 7 (a) of the counter-affidavit deposed to by the 2nd respondent/applicant-Chief Wonder Ogodo on 27th October, 2009, to wit:
“That Messrs John Alele & Co ceased to represent us in this case (the matter between us and UAC Plc) on the day the Appeal No. Ca/B/73/2000 was struck out.”
That may well be so. However, this information came too late in the day. The information ought to have been given to the other parties in the appeal as soon as there was change of counsel by the respondents/applicants, in accordance with Order 3 rule 7(4) of the rules of this court, 2002. It provides, inter alia:
“(4) Any party to an appeal or intended appeal may change his address for service at any time by filing and servicing on all other parties to the appeal or intended appeal notice of such change.”
This was clearly not done by the respondents/applicants. Furthermore, if the firm of John Alele & Co, had ceased to represent the respondents/applicants after the striking out of the earlier Notice of Appeal by this court, at the instance of the respondents/applicants on 22nd September, 2003, it was incumbent on John Alele & Co, to have so informed the Registrar of this court of that fact, as soon as it happened in compliance with Order 1 rule 3(5) of the 2002 rules of this court. It says, inter alia:
“Where any person has given the address of a legal practitioner as his address for service and the legal practitioner is not or has ceased to be instructed by him for the purpose of the proceedings concerned, it shall be the duty of the legal practitioner to inform the Registrar as soon as may be that he is not or no longer authorized to accept service on behalf of such person and if he omits to do so he may be ordered to personally pay any cost occasioned thereby.
Again, this was not done by the firm of John Alele & Co. of No. 19 Warri/Sapele Road, Warri, then as counsel for the respondents/applicants. First Bank of Nigeria Plc. v. T.S.A. Industries Ltd (2007) 17 WRN 40 at 79-80.
For all I have been saying it is manifest that the respondents/applicants were duly served with the hearing notice dated 21st January, 2004 through their counsel, that is, the legal firm of John Alele & Co. at No. 19 Warri/Sapele Road, Warri on 27th April, 2004 for the hearing of the appellant/respondent’s motion on Notice for extension of time for leave to appeal. Therefore, the said hearing notice of 21st January, 2004 is not liable to be struck out. Furthermore, since the aforementioned hearing notice was duly served on the respondents/applicants, and the motion on Notice for extension of time for leave to appeal was heard by this court on 10th May, 2004 consequent upon the service of the said hearing notice on 27th April, 2004 on the respondents/applicants, the order granted in favour of the appellant/respondent on 10th May, 2004 is also not liable to be set aside. I so hold.
Next is the filing and service of the appellant/respondent’s Notice and Grounds of appeal. Was it personally served on the respondents/applicants?
This court on 10th May, 2004, in granting the appellant/respondent’s motion on Notice for enlargement of time to appeal against the judgment of the Sapele High Court in suit No. S/67/76 of 17th July, 1984 ordered as follows:
“(i) The motion be and is hereby granted as prayed.
(ii) Time is extended to today for the applicant to apply for leave to appeal against the judgment of the Sapele High Court dated 17th July, 1984.
(iii) Leave is granted to the applicant to appeal against the said judgment.
(iv) The applicant is granted 30 days from today to file their notice and grounds of appeal.
(v) Leave is granted to the applicant to use the records of proceedings compiled for appeal No. CA/B/73/2000.”
The appellant/respondent then filed her notice and grounds of appeal dated 28th May, 2004; on 2nd June, 2004. The respondents’ /applicants’ address for service on the Notice and Grounds of appeal is at Ogodo Quarters, Sapele. See Exhibit “UAC3” of the appellant/respondent and Exhibit “WO4” of the respondents’/applicants’.
The contention of the respondents/applicants is that they were not duly served with the Notice and Grounds of appeal at their address, that is, Ogodo Quarters, Sapele. The appellant/respondent’s senior counsel submitted to the contrary. It is settled that service of a process of court such as an initiating process like a Notice of appeal on a party directly affected by the appeal, cannot be an assumed event. Hence, it is incumbent on the appellant/respondent who asserted the fact of the service of the Notice of appeal on the respondents/applicants, personally at Ogodo Quarters, Sapele to prove that fact. S. 131(1) & (2) Evidence Act, 2011.
The proof of service of a court’s process on a party in an action or appeal, is usually by means of an affidavit of service except where there is an admission by the party concerned that he was duly served with the process of court, in question. The court is bound to accept and rely upon the act of service and the information given to it by the registrar of the court where such an act or information is backed by the contents of the processes filed and the endorsement of service thereon as contained in the court’s case file, for a smooth running of the state of affairs in the administration of justice in the courts.
Chief J. Olorunyolemi & Anor V. Mrs. Helen Akhagbe (2010) 2 SCNJ 318 at 326; Tsokwa Motors (Nig) Ltd V. UBA, Plc (2008) 2 NWLR (pt. 1071) 347 at 352 – 353; African Continental Bank Plc V. Osada Nig. Ltd. & Ors. (1995) 7 NWLR (pt. 405) 25 SC; Okoye V. Centre Point Merchant Bank Ltd. (2008) 7 SCNJ 153.
I have perused the deposition by Godspower Idahosa at paragraph 6 of the appellant/respondent’s counter affidavit of 28th October, 2009 that:
“6. After the leave of this Honourable court was granted, the Notice and grounds of appeal dated 28th May 2004 and filed on 2nd June 2004 was addressed to Chief Wonder Ogodo, one of the applicants in this application. A photocopy is exhibited as exhibit ‘UAC3’.
That is indisputable. It is true. However where is the endorsement on the Exhibit ‘UAC3’ that it was duly served on Chief Wonder Ogodo and on what date was it so served on him? Apparently, there is no such endorsement of the service of the Notice and grounds of appeal ex facie, on Exhibit ‘UAC3’ nor is there any affidavit of service of the said Notice and grounds of appeal on the respondents/applicants by the appellant/respondent.
In the circumstances of this case, I find and hold that the Notice and grounds of appeal dated 24th May, 2004 and filed on 2nd June, 2004 by the appellant/respondent was not served on the respondent/applicants, at all.
The effect of the non-service of the said Notice and grounds of appeal on the respondents/applicants, is that the appeal is dormant and nothing can be done on it, unless and until the said notice and grounds of appeal is personally served on the respondents by the appellant. However, since there is no defect alleged in the said notice of appeal itself, it cannot be struck out just because it has not been served on the respondents/applicants, personally.
In sum, the application failed on all grounds and it is dismissed, accordingly.
Each side to bear own costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A: I agree
AYOBODE O. LOKULO-SODIPE, J.C.A: I have had the privilege of reading in draft the lead Ruling prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. His lordship has dealt extensively with all the Issues raised therein for determination and I am in complete agreement with the exposition of the law, reasoning and conclusions in the said ruling. I have nothing to add.
Appearances
Ewaen Eduwu, Esq. (with Miss A. Oloyede) For Appellant
AND
S.C. Odoh, Esq. For Respondent
