LawCare Nigeria

Nigeria Legal Information & Law Reports

AGBONIFO v. IRIKEFE & ORS (2022)

AGBONIFO v. IRIKEFE & ORS

(2022)LCN/16083(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 20, 2022

CA/AS/08/2020

Before Our Lordships:

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal

Between

MR FREDERICK AGBONIFO APPELANT(S)

And

1. PASTOR FAITH IRIKEFE (For Themselves And On Behalf Of The Family Of Late Justice Gabriel Ayo Irikefeof Kokori) 2. MR MORRISON REFOH (For Themselves And On Behalf Of Chief A. F. A. Refoh Family) 3. Mr. IKE AGBANELO 4. MR FESTUS OGUNLESI RESPONDENT(S)

 

RATIO

WHETHER OR NOT PARTICULARS OF ERROR MUST BE INDEPENDENT FROM A GROUND OF APPEAL

In Egbirika v. State (2014) LPELR-22009 (SC) the apex Court (Kekere-Ekun,JSC, in lead judgment), following Globe Fishing Co. Ltd v. Coker (1990) 7 NWLR (PT 162) 265; Honika Sawmill (Nig.) Ltd v. Hoff (1994) 2 NWLR (PT 326) 252, Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (PT 938) 59, stated the position on this point thus at p.14 that:
“The law is settled that the particulars of error of a ground of appeal must not be an independent complaint from the ground of appeal but should be ancillary to it. Where the particulars of a ground are inconsistent with the main complaint in the ground, the particulars must be discountenanced.”
PER UGO, J.C.A.

WHETHER OR NOT A WRIT OF SUMMONS WHICH HAS NOT BEEN SERVED FOR TWELVE MONTHS REMAINS A VALID WRIT

At any rate, Karibi-Whyte, JSC, made the point clear when His Lordship said in Kolawole v. Alberto (1989) LPELR-1700 (SC) P.43-44 that:
“A Writ of Summons which has not been served for twelve months remains a valid writ but lies dormant and ineffective for service awaiting to be reactivated and rendered efficacious in the manner prescribed by the rules. The Court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapsed.” (Italics mine).
PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from an Interlocutory decision/order of the High Court of Delta State of 18/12/2019 renewing for service on appellant 1st respondent’s Writ of Summons originally issued on 7th November, 2017. The said action was commenced by 1st respondent against appellant and 2nd to 4th Respondents and one Ike Ishaka (as 3rd defendant) but was discontinued by 1st respondent against the said Ike Ishaka because respondent found it difficult to serve him.

Appellant could not also be served with the writ of summons before its twelve-months lifespan expired.

​First respondent who had long served the same writ successfully on 2nd to 4th respondents subsequently brought a motion before the lower Court for interlocutory injunction. When that application came up before the Court on 9/4/2019, appellant appeared in person in the Court for the first time and complained to it that he had not been served with the originating processes or even the said motion; that all he was served with, upon which he came to Court, was hearing notice of the suit for that day.

Following that information, the trial judge further adjourned the case, but not without threatening to strike out the suit for want of diligent prosecution if processes in the suit, including the originating processes, were not served on appellant before the next adjournment.

On the said next adjourned date being 28/5/2019, appellant, who had then been served with the writ of summons, came with a preliminary objection to the suit on the ground that the Court lacked jurisdiction to entertain the suit against him because he was served on 10/4/2019 with 1st respondent’s writ of summons issued on 7/11/2017 which had long expired and was not renewed before it was served on him.

At the same time, 1st respondent had also caused to be filed before the same Court an ex parte (without notice) motion before the same Court for renewal of the said writ.

Eventually, at the instance of appellant, his preliminary objection and 1st respondent’s ex-parte motion for renewal of his writ of summons were taken together, with appellant also permitted by the Court to be heard on the motion ex parte application too.

It so transpired that the arguments of both parties on the lower Court’s power or lack of it to renew that Writ that had long expired converged on each party’s interpretation of the Supreme Court’s decision in Kolawole v. Alberto (1989) 1 NWLR (PT 98) 382, with appellant also further arguing (1) that the motion for renewal was intended to overreach his preliminary objection to the same writ served on him; (2) that the said writ having been already served on him, though expired, it cannot be renewed again and (3) that 1st respondent omitted to pay him penalties provided by the rules of that Court for the delay in serving the writ so that also disabled the grant of his application.

At the end of the day, the Court ruled in favour of 1st respondent’s application for renewal of the writ and dismissed appellant’s preliminary objection. It reasoned thus in that ruling:
“It is my humble view that from Order 3 Rule 14 (Delta State High Court Rules), all that the claimant is required to establish for an expired writ to be writ is that the writ has not been served on the defendant. I had earlier opined that service of an expired writ on the defendant as in the instant case is tantamount to no service at all. Consequently, I find that the claimant has met the minimum threshold requirement in an application to renew the writ.
“The motion ex parte contains a prayer for extension of time. From the supporting affidavit, the claimant clearly paid the penalty due from 6/11/2018 but this computation suggested that the writ was valid for one year instead of six months as provided by Order 3 Rule 14.
“From the totality of all the above, I find merit in the application of the claimant and resolve the two issues in favour of the claimant. However, the claimant having paid less the penalty required by the rules, he is hereby ordered to pay the additional penalty of ₦100 per day from the 6th May 2018 to 6th Nov. 2019 and upon payment of the outstanding penalty, the Court hereby orders as follow:
1. Time is hereby extended for the claimant from 6/5/2018 to the 19th of July, 2019 within which to apply to renew the lifespan of the writ which expired in 6/5/2018.
2. The lifespan of the writ which expired in 6/5/2018 is hereby extended for another three months beginning from 18/11/2019.
The preliminary objection is hereby dismissed.”

Aggrieved thereby, appellant has lodged this appeal to this Court against it on three grounds and distilled three issues therefrom for determination (also adopted by 1st respondent) as follows:
1. Whether the lower Court was right in extending time for 1st respondent to apply to renew the lifespan of the writ of summons after same was served on him (appellant).
2. Whether the lower Court was right in holding that the writ of summons has not been served on the appellant at the time 1st respondent applied to renew it.
3. Whether the lower Court was right in renewing the lifespan of the writ of summons after same was served on him (appellant).

Whereas appellant argued each of his three issues separately, even as they are all intertwined, 1st Respondent who was the only party to respond to the appeal argued issues 1 and 3 together and then issue 2 separately.

Appellant, in arguing his issue 1, where he simply asked “whether the lower Court was right in extending time for 1st respondent to apply to renew the lifespan of the writ of summons after same was served on him,” somehow brought in issues of (1) respondent’s failure to pay him penalties for the period between the time the writ expired and when the application for its renewal was filed; (2) that 1st respondent’s omission to pay him the said default penalties rendered his application incompetent and denied the lower Court of jurisdiction to entertain his application let alone grant it as it did, and (3) that the lower Court’s omission to pronounce on that contention denied him fair hearing so its entire decision was a nullity.

On his issue 2, he argued that by Order 3 Rule 14 of the Delta State High Court Rules the power to renew a Writ can only be exercised by the Court when the writ had not been served on a defendant; that since in this case the writ had already been served on him, the lower Court had lost the power to renew it.

Appellant in his issue 3 simply repeated his arguments in issue 1 and 2 that 1st respondent having served on him his already expired writ the lower Court cannot renew the same writ, especially in the face of his preliminary objection challenging it, so his name ought to have been struck from the suit.

First respondent filed a copious brief of argument supporting the decision of the lower Court. He also relied on Kolawole v. Alberto supra and a few other cases in making his submissions.

Resolution of issues
I must first observe that it appears to me that the only complaint raised by appellant in all his three grounds of appeal and three issues is that the lower Court lacked power to renew the writ in issue upon its expiration after it had been served on him. Besides that narrow issue, every other issue he has argued before us is not part of his complaints in his grounds of appeal. I have already reproduced his three issues, so I shall next reproduce his three grounds of appeal to buttress the point I am trying to make here. His said three grounds stripped of their particulars read as follows:
Ground 1: The learned trial judge erred in law when he extended time for the claimant/1st Respondent to apply to renew the lifespan of the writ of summons after same was served on the 4th defendant/appellant. (Italics mine)
Ground 2: The learned trial judge erred in law when he held that the Writ of Summons has not been served on the 4th Defendant/appellant at the time the claimant/1st Respondent applied to renew the lifespan of the Writ of Summons. (Italics mine)
Ground 3: The learned trial judge erred in law when he renewed the lifespan of the Writ of Summons after same was served on the 4th Defendant/appellant. (Italics mine)

The complaint of an appellant in his grounds of appeal is the foundation of every appeal. Appellant, in this case by the portions of his grounds of appeal that I italicized, gave the reasons why he thought the trial Court was wrong in renewing 1st respondent’s Writ of Summons. None of those reasons related to non-payment of penalties by 1st respondent or denial of fair hearing to him by the decision of the Court that he argued in his brief of argument. His complaints against the renewal of the Writ of Summons were simply that:
(1) The same Writ had been already served on him so the lower Court had lost the power to renew it, and further.
(2) That the lower Court was wrong to hold that the writ, having already expired, its service on him was a nullity.

Appellant also seems to have realized these bounds of his grounds of appeal when he, in compliance with Order 19 Rule 3(4) of the Rules of the Court of Appeal 2021 stating that “All briefs shall be concluded with a numbered summary of the points raised and the reasons upon which the argument is founded,” properly confined himself to his said two issues when at p. 15 paragraph 5.0 of his Brief of Argument he Concluded it with the following summary:
“5.1 We have argued and urged upon the Honourable Court to hold that the lower Court was not right in extending time for the 1st Respondent to apply to renew the lifespan of the writ of summons after same was served on the appellant.
5.2 We urged upon your Lordships to hold that the lower Court was not right in holding that the writ of summons has not been served on the appellant at the time the 1st Respondent applied to renew the lifespan of the writ of summons.
“5.3 We argued and urged upon your Lordship to hold that the lower Court was not right in renewing the lifespan of the Writ of summons after same was served on the appellant.

Yes, it is true appellant in his Particulars of Error Numbers 7, 8 and 9 in support of Grounds 1 and 3 of his appeal mentioned that 1st respondent did not pay default fees/cost to him so the order of the Court renewing his writ of summons was incompetent, but those particulars have no connection whatsoever to his sole complaint in the said two grounds of appeal that the same Writ of Summons having been already served on him, it cannot be renewed again. His said particulars of error of non-payment to him of penalties and the lower Court’s failure to rule on that point having caused lack of fair hearing being inconsistent with his complaints in his three grounds of appeal, must be discountenance and struck out. In Egbirika v. State (2014) LPELR-22009 (SC) the apex Court (Kekere-Ekun,JSC, in lead judgment), following Globe Fishing Co. Ltd v. Coker (1990) 7 NWLR (PT 162) 265; Honika Sawmill (Nig.) Ltd v. Hoff (1994) 2 NWLR (PT 326) 252, Briggs v. C.L.O.R.S.N. (2005) 12 NWLR (PT 938) 59, stated the position on this point thus at p.14 that:
“The law is settled that the particulars of error of a ground of appeal must not be an independent complaint from the ground of appeal but should be ancillary to it. Where the particulars of a ground are inconsistent with the main complaint in the ground, the particulars must be discountenanced.”
Their Lordships in Egbirika’s case proceeded to strike out the said hanging particular of the ground of appeal (see p.14 para E-F.). That is also the lot of the Particulars (7), (8) and (9) of appellant’s Grounds 2 and 3 of his notice of appeal and the arguments he made on them about non-payment to him by 1st respondent of penalties/costs for renewal of his writ. They are hereby struck out.

The same fate also befalls his complaint of denial of fair hearing to him by reason of the trial Court’s alleged failure to pronounce on the same issue of non-payment of penalties to him. This issue, I further note, is in a even worse position as it is not even located in any of the particulars of the three grounds. It has been said, and rightly too, that the appellate Court should ‘roundly discourage undue and deliberate extension of issues to be agitated on appeal beyond the complaint encompassed in the grounds of appeal’. See Dantata v. Mohammed (2000) LPELR-925(SC) p.38 paragraphs D-F.

In the result, both issues of appellant here identified which are not founded on his grounds of appeal are hereby struck out and the arguments made by appellant on them discountenanced.

That is even as I must to say that if the said issue of non-payment of penalty was even properly put before this Court and made out, all this Court would have done to remedy it is to simply exercise its powers under Section 15 of the Court of Appeal Act 2004 to order their payment to appellant, such penalties for late filing being only properly made upon the grant of the application for extension of time and not before when it is not even clear whether time would be extended to warrant the payment. Put simply, omission to pay Court penalties for failure to take a step within time is not an issue that affects the jurisdiction of the Court to entertain an application. The case of Onwugbufor v. Okoye (1996) 1 NWLR (PT 424) 252 @ 331 and all the others following it that were cited by appellant’s counsel, which cases also only establish the point that failure to pay filing fees affects the jurisdiction of the Court to entertain or make any order in respect of such claim or process, are therefore all inapplicable.
With that said, I now proceed to tackle appellant’s sole surviving complaint of whether the trial judge was right in renewing 1st Respondent’s Writ of Summons after same had already been served on him by the bailiff. In tackling that issue, one notes, first, that the issue of whether a Writ of Summons that has expired can be renewed has been laid to rest with an unequivocal affirmative answer by the apex Court in Micheal Kolawole v. Pezzanni Alberto (1989) 1 NWLR (PT 98) 38; (1989) LPELR-1700 (SC). There, their Lordships held that by similar general powers of extension of time to take steps vested on the Delta State High Court (Civil Procedure) rules 2009 by Order 44 Rule 3, the High Court can extend the time for renewing Writ of Summons for service even after its 12-months lifespan, so Ayorinde, J., of the High Court of Lagos State and this Court were both wrong in Kolawole v. Alberto in holding that a Writ of Summons whose lifespan had expired cannot be renewed.
In respect of his argument that an expired writ of summons cannot be renewed once served on the defendant, appellant cited the same case of Kolawole v. Alberto supra. As shown earlier, the trial judge rejected that argument when she held, instead, that “……..service of an expired writ on the defendant as in the instant case is tantamount to no service at all; consequently ……. the claimant has met the minimum threshold requirement in an application to renew the writ.” I cannot see my way clear in faulting this reasoning. In fact, if anything, appellant’s seems to be even contradicting himself given that he had first asserted in paragraph 4 of his Notice of Preliminary objection at page 191 of the records that:
4. There being no valid Writ served on the 4th Defendant, the Court lacks jurisdiction to entertain this suit against the 4th Defendant.
He repeated this assertion word for word in paragraph 5 of his affidavit supporting that objection (see page 193 of the records) and further swore in paragraph 3 of that same affidavit that “there is no endorsement on the Writ to show that its validity was renewed before same was served on me on 10th April 2019.” He cannot be heard to approbate and reprobate on the same issue. At any rate, Karibi-Whyte, JSC, made the point clear when His Lordship said in Kolawole v. Alberto (1989) LPELR-1700 (SC) P.43-44 that:
“A Writ of Summons which has not been served for twelve months remains a valid writ but lies dormant and ineffective for service awaiting to be reactivated and rendered efficacious in the manner prescribed by the rules. The Court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapsed.” (Italics mine).
First Respondent’s Writ of Summons in issue, to use the words of Karibi-Whyte, JSC, above, was “ineffective for service” on appellant until the order of the lower Court of 18/12/2019 renewing it. That is even as one must not fail to recognize that the service of that expired Writ of Summons on appellant was necessitated by the unnecessary threat of the lower Court of 9/4/2019, made on appellant’s complaint of non-service, to strike out the entire suit of 1st respondent for want of diligent prosecution if appellant was not served before the next sitting.

In the event, I hereby resolve this only surviving issue arising from appellant’s grounds of appeal against him. I hold that the lower Court was in order in renewing 1st Respondent’s Writ of summons in issue for service on appellant, 2nd to 4th respondents having been long served with that same Writ of Summons before its expiration.

This appeal therefore lacks merit and is hereby dismissed while the decision of the lower Court is affirmed.

Cost of this appeal is assessed at ₦100,000.00 against appellant and in favour of 1st Respondent.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother, BOLOUKUROMO MOSES UGO, JCA.

For the more detailed reasoning in the lead judgment, I also agree that this appeal is bereft of merit. It is accordingly dismissed.

I adopt the consequential orders in the lead judgment as mine.

SYBIL ONYEJI NWAKA GBAGI, J.C.A.: I have the honour of reading the lead judgment of my learned brother, BOLOUKUROMO MOSES UGO, JCA.

​I am in agreement with my learned brother that the trial Court can grant an application which will render the writ as effective as when it was issued originally and before the period of twelve months elapsed.

Consequently, this appeal lacks merit and same is hereby dismissed.

​I also agree to the order as to cost.

Appearances:

Jonathan Ekperusi Esq. For Appellant(s)

R.C. Ireyefoju Esq. For Respondent(s)