AKAD INDUSTRIES & ANOR v. ALHAJI LASISI OLUBODE
In The Court of Appeal of Nigeria
On Monday, the 19th day of May, 2003
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Court of Appeal of Nigeria
- AKAD INDUSTRIES LTD.
2. CHIEF AKIN ADEMOKOYA Appellant(s)
ALHAJI LASISI OLUBODE Respondent(s)
CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Lagos High Court (Coram: Ade Alabi, J.) in the ruling of 12th February, 1999, which dismissed the defendants/appellants application to set aside the judgment of 19th June, 1996, in the sum of N100,000.00 with interest, entered in default of appearance.
The original claim before the lower court was N608,587.80; a judgment for the sum of N508,587.80 was entered in favour of the plaintiff/respondent upon admission. In the course of hearing the disputed claim in the sum of N100,000.00, precisely at the point of cross-examination of the plaintiff/respondent the lower court on 2nd April, 1991, before adjourning further hearing to 2nd May, 1996, ordered that, “hearing notice shall be issued and served on the defendant’s counsel and whoever serves the hearing notice shall depose to an affidavit of service.” The said hearing notice was served on one Miss Basirat Salawu as deposed in the affidavit of service. The lower court reacted to an application to vacate the judgment of 19th June, 1996 as per its ruling of 12th February, 1996, which dismissed the application on the ground that the defendants/appellants’ counsel notwithstanding the service upon him of the hearing notice did not have good reasons for defaulting to appear at the further hearing of the matter.
Dissatisfied with the decision in the said ruling of 12th February, 1996, the defendants/appellants have appealed from the said decision by filing a notice of appeal dated 26th February, 1999, raising thereof three grounds of appeal.
The briefs of argument have been filed and exchanged between the parties. The appellants have formulated in their brief of argument two issues for determination as follows:
“1. Whether or not the finding that the order of the Honourable lower court of 02/04/96, ordering that the appellant’s counsel in the said court be served with a hearing notice of the on going trial was complied with or obeyed was correct.”
“2. Whether or not the Honourable Judge of the lower court exercised his discretion to dismiss the appellants’ motion for setting aside correctly.”
The respondent on the other hand has raised four issues for determination in his amended brief of argument and they are as follows:
“1. Whether an order of court for service of process on counsel necessarily connotes services of such process strictly on the person of such counselor on his chambers, through anyone who has right or duty to receive service of such process for and on his behalf.”
2. Whether or not, the service of the hearing notice dated 02/05/96, on the solicitors for the appellants Mr. Deji Adagunodo through one Miss Basiratu Saliu, who before accepting the service revealed to the process server her relationship with the lawyer and undertook to deliver the said hearing notice could be said to have satisfied the order of court, dated 02/04/96, directing the said services on counsel”
“3. Whether or not, having regard to the circumstances that gave rise to the application for setting aside of the court’s ruling dated 12/02/99 and the conduct of the appellants in the course of the proceedings in the matter the trial court has exercised its discretion judicially and judiciously in refusing the said application.”
“4. Whether having regard to the new evidence before the court as admitted by the court in its ruling dated 7th December, 2000, it can be said that the respondent has proved the service of the hearing notice, dated 02/05/96, on Barrister Deji Adegunodo on 02/06/96 through Miss Basiratu Saliu.”
The appellants have filed an amended reply brief.
The two issues for determination raised by the appellants in the matter are comprehensive and stem from the ruling and the grounds of appeal as per the notice of appeal and are capable of resolving the appeal. The respondent’s issues one and two come within the ambit of the appellants’ issue one, while the appellants’ issues two is conterminous with the respondents’ issue three and four. In discussing the matter, I am to be guided by the issues for determination as identified by the appellants, while adverting to the points taken by the respondent in his amended brief of argument.
The central matter in the appellants’ issue one is whether the court’s order that the appellants’ counsel be served with a hearing notice at the trial of the matter has complied with the terms of the order of court.
The appellants have submitted that the lower courts’ order was not complied with even though further hearing had become conditional on due service. And that what was served on one Basiratu Salawu, a total stranger, who resided at No. 25 Carter Street and a student of the University of Ilorin, in Kwara State and not in the employ of the appellants’ counsel was not proper service and not even in compliance with the rules of court as provided in Order 7 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1994, and therefore contrary to the terms of the courts’ order. The appellants have urged the court to revisit and vacate particularly the finding of the lower court to the effect that the appellants’ counsel was duly served the hearing notice as ordered by the court. It is also, contended that the refusal to set aside the judgment was a wrong exercise of the lower court’s discretionary powers. See University of Lagos v. Olaniyan (1985) 1 NWLR (Pt. 1) 156, (1985) 16 NSCC (Pt.1) 98 at 102, which appeared based on wrong interferences drawn from the affidavit evidence and so have urged the court to review the finding with a view to disturbing the same based on the authorities of Rabiu v. State (1980) 2 NCLR 293; (1980) 12 NSCC 291; Panache Communications Ltd v. Aikhomu (1994) 2 NWLR (Pt.327) 420. Also, it is submitted that the finding caused a miscarriage of justice particularly when the appellants have alleged of having discharged of the debt of N100,000.00 in their defence.
The respondent in his amended brief has maintained that the appellants’ counsel was duly served the hearing notice through one Miss Basiratu Salawu (his once upon a time clerk) and that the said service being in conformity with provisions of Order 6 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 and Order 7 rule 4 of Lagos State (Civil Procedure) Rules, 1994, complied with the lower court’s order and therefore, too late to reopen the question of service of the instant process. On the exercise of its discretion, the respondent has opined that the lower court adhered to the guiding principles as on Sanusi v. Ayoola (1992) 9 NWLR (Pt.265) 275. See PC (Nig.) Ltd. v. Pan Bisbuilders (1992) 7 NWLR (Pt.252) 231, and has alleged lack of good grounds for the application and that the judgment sought to be set aside was obtained on 19/06/96 and duly executed on 08/10/96 and too late to be set aside.
On the new evidence as per exhibit C which acknowledged and admitted the alleged proper service of the hearing notice on Barrister Adagunodo, the appellants have taken the point under the respondent’s issue 4 in their amended reply brief. They rely on section 92(1) of the Evidence Act, 1990, to suggest as to the inference to be drawn from the affidavit and the letter confirming service on Mr. Adagunodo, appellants’ counsel. In evaluating the evidence, again the appellants have urged the court to allow the guidelines as in section 92 Evidence Act, Egbaran v. Akpotor (1997) 7 NWLR (Pt.514) 559 at 571; Makinde v. Ojeyinka (1997) 4 NWLR (Pt.497) 80 at 93 to prevail. The court is further urged not to attach weight on the said affidavit and letter and to disregard the entire further evidences for being an after thought. I now deal with the matter.
The respondent has taken the issue of further evidence under issue 4 of the respondent’s brief. I think it should be noted that it is always open to a respondent to support the judgment on any ground. It may be that respondent won on the contention which though not raised in the court below he is entitled as respondent to raise in this court so as to hold his judgment provided that the point should be one which is open to the respondent on the facts found below; as a respondent cannot take a point which rests upon facts not investigated in the court below. See Errington v. Errington (1952) 1 KB 290 at 300 per Denning L.J. (as he then was).
This court has granted the respondent’s application for the adoption of further evidence on appeal hence, the filing of an affidavit and exhibited to it a letter written by Deji Adagunodo, the erstwhile counsel to the appellant very much in the eye of the storm in this matter. In the said letter, Mr. Adagunodo has claimed he received the hearing notice served on Basirat Salawu and sent it to the 2nd appellant.
The principles guiding fresh evidence on appeal are as per Order 1 rule 20(3) of the court of appeal rules.
The appellants in reacting to the further evidences have urged the court to take into account that the appellants’ counsel did not after all appear before the lower court in response to the hearing notice and was therefore negligent professionally which culrrunated in the default judgment. The respondent on his part holds to the view that the new evidence has confirmed the service of the hearing notice on the appellants’ counsel.
The guiding principles on evaluation of evidence have been laid down by the Supreme Court in the case of Mogaji & Ors. v. Odofin (1978) 4 SC 91 at 94 – 96 and they include:
1. Whether the evidence is admissible;
2. Whether the evidence is relevant;
3. Whether the evidence is credible;
4. Whether the evidence is conclusive;
5. Whether the evidence is more probable than that given by the other party.
I now subject the further evidence to the above guiding principles.
The court on the authorities of section 92 of the Evidence Act, 1990, Egbaran v. Akpotor (1997) 7 NWLR (Pt.514) 559 at 571 and Makinde v. Ojeyinka (1997) 4 NWLR (Pt.497) 80 at 93, can draw necessary inferences, although it cannot make findings as to credibility of witnesses; on the matter of drawing inferences both the court below and this court stand on the same pedestal.
The weight to be given to the matter of further evidence in this matter is seriously diminished by the following factors: (1) It is not explained why the hearing notice served on counsel, had to be sent to 2nd appellant by his counsel and when counsel was still acting in the matter and even had not been discharged by court. (2) Even though, counsel was so served he nonetheless failed to appear in the court not even out of sheer defence to the court. (3) It was open to the respondent to take this point to the court below so as to have it properly investigated and pronounced upon as it is not practice of this court to hear evidence but to correct errors in the judgments of lower courts. It is crucial that this point should have been dealt with by the lower court. More importantly, this court is concerned with complaints or attacks leveled against the judgment of the trial court as per grounds of appeal.
For all this, I do not think that much weight ought to be placed on the piece of further evidence as per the affidavit exhibit C and the letter exhibited to it before this court in this matter.
Besides, the further evidence has not been more probable nor has it counter-vailed the evidence of the appellants on the point: All the same it lacks conclusiveness. It has therefore come to naught.
Reverting to the main appeal, I am minded to take the two appellants’ issues for determination together. Central to this appeal, is the instant default judgment obtained against the appellants, who have contended it was irregularly obtained. That is, on the alleged non-service of the hearing notice in the matter of the ongoing trial as ordered by the trial court. The appellants have therefore urged the court to disturb the finding of the lower court on the question of the hearing notice by re-evaluating the matter and for the authority to do so have referred to Ebba v. Ogodo (1984) 1 SCNLR 372, (1984) 15 NSCC 255; Benmaz v. Austin Motors Co. (1953) AC 370; and Lion Building Limited v. M.M. Shadipe (1976) 12 SC 135.
Meanwhile, it is settled that the court has the inherent powers to set aside its default judgment not predicated upon the merits. See Evans v. Bartlam (1937) AC 473 at 480.The lower court on 02/05/96 ordered that:
“Hearing notice shall be issued that served on the defendant’s counsel and whoever serves the hearing notice shall depose to an affidavit of service. ” (Italics mine for emphasis)
The affidavit of service in this matter by one Abdul-Azeez Abimbola Oladunjoye, deposed to the service of the hearing notice on one Basirat Salawu of No.25 Carter Street, a student of the University of Ilorin and a former clerk of the defendants/appellants’ counsel. The lower court has made a finding to the effect that the appellants’ counsel was duly served with the hearing notice as per the deposition of Abdul-Azeez Abimbola Oladunjoye and so, proceeded to enter the instant default judgment against the appellants who failed to appear at all at the trial. And the respondent has urged on this court to so uphold. The respondent has also urged that the mode of service conformed with the provisions of Order 6 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 and Order 7 rule 4 of High Court of Lagos (Civil Procedure) Law 1994 Cap. 61 as personal service was not required. And that service on the chambers of counsel through the clerk as was done on this occasion sufficed and has not been faulted by the appellants.
Firstly, since in this matter, the lower court’s evaluation of the evidence (mainly affidavit evidence) did not involve the credibility of witnesses, but the complaint here is against the improper evaluation of evidence by that court, this court is aptly positioned as the trial court to undertake its own evaluation. See Mogaji v. Odofin (1978) 4 SC 91 at 94 – 96; Narumal & Sons (Nig.) Ltd. v. Niger Benue Transport Co. Ltd. (1989) 2 NWLR (Pt.106) 730 at 742. Taking an overview of this matter this court will not hesitate to interfere with the instant finding on service of the hearing notice on the appellants’ counsel.Undeniably, by ordering service of hearing notice on the appellants’ counsel further hearing of the matter had clearly become conditional upon due service of the hearing notice. The implications of non-compliance will come out positively in the course of the judgment. In view of the misconception being contested by the parties on the purport of the instant order, I have decided to examine the words of the said order, which I have already set out above. The words are clear and free from any ambiguity in themselves and there is no doubt as to the subject matter of the order they relate. That being the case, the words have to be construed according to their strict, plain and ordinary meaning, that is, by giving them their literal canon meaning: See Union Bank of Nigeria v. Ozigi (1994) 2 NWLR (Pt.333) 385; and A.C.B Plc v. Losada Nigeria Ltd. (1995) 7 NWLR (Pt. 405) 26, per Adio, JSC. By the words of the mandatory order service was to be restricted upon the defendants/appellants counsel and strictly construed not to include any other mode of service for instance as by leaving the process with an adult person resident or employed at the address for service as suggested by the respondent that is even based on the above mentioned rules of court.
There can be no doubt the order has to be obeyed. The failure to serve the hearing notice as ordered by the trial court, in my view, renders the purported service of the hearing notice and the proceedings thereupon a nullity.
The whole essence of ordering this mode of service is as to how best to bring the ongoing hearing of the matter to the notice of the appellants’ counsel. Therefore it has to be service on the appellants’ counsel and on no other person. See Orakwute v. Agagwu (1996) 8 NWLR (Pt.466) 359 at 376; Hadkinson v. Hadkinson (1952) 2 All ER 567. In Odutola v. Kayode (1994) 2 NWLR (Pt.324) 1 Mohammed, JSC, had expressed the view that in the service of process whether personal or substituted, the bailiff or any officer of court entrusted with the task should satisfy himself that he had found the right man and that it is not enough to leave a court process with a person who works in the same office with the defendant as was done in the cited case. See United Nigeria Press Limited & Anor. v. Adebayo (1969) 1 ANLR 431.
I think I must here advert to the relevant paragraphs 6, 7, 8 and 9 of the said affidavit service in this matter, to reflect what transpired at the service in the said process and they are reproduced as follows:
“6. That on the said 02/05/96, I requested for and got another set of the hearing notice from the registry to be served on the Barrister afore named and I, in company of the plaintiff went straight from the court to the lawyer’s office at 30 Carter Street, where we met a girl in front of the office, who on my enquiring for the where about of the lawyer Mr. D. Adagunodo, replied that he (the lawyer) was not in the office at that material time and introduced herself as Miss Basirat Salawu.
7. That the said Miss Basirat Salawu, said that she knew and still knows the lawyer very well, as she lives at 25 Carter Street, directly opposite the office at 30 Carter Street and that she used to be his secretary on full time basis, before she gained admission into Ilorin University.
8. That she on holiday at the material time and she was seeing him very often, she received and delivered documents to him and that she was in a position to deliver the hearing notice and would deliver it to him.
9. That Miss Basirat Salawu acknowledged the receipt of the hearing notice, by writing her full name, her residential address, her signature, the name of the chamber, the date on which she received the hearing notice and the time on the copy of the said hearing notice. A copy of the said acknowledgement is herewith attached as exhibit ‘A’.”
The mode of service of the hearing notice in this matter on the appellants’ counsel as deposed by the respondent has been put beyond any doubt by the foregoing depositions.
Unhesitatingly, the instant mode of service as depicted by the foregoing depositions no doubt do not come within the strict purview of the order of court in the matter. This, again simply means that the order of service of the said process was not strictly complied with. The fact that Basirat Salawu of No. 25 Carter Street, near the appellants counsel’s chambers of 30 Carter Street was his former clerk, more so as she is now a student of the Ilorin University, did not warrant serving her the instant process in flagrant disregard of the terms of the order of court. And I must here reiterate as per a passage in the Hadkinson v. Hadkinson (supra) where Romer, L.J. stated as follows:
“It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it, unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”
The implication of my reasoning here is that, having predicated further hearing of the matter conditional on due service of the said hearing notice and having as shown above flawed the said service, the appellant is entitled to have the entire proceedings predicted upon the said notice set aside. To support this view, I refer to the opinion of Uwais, JSC (as he then was) in cited case of Odutola v. Kayode (supra) where he said at 15:
“It has been held that where the services of any notice of a proceeding is required to be given, failure to notify any party to the case is a fundamental omission, which entitles the party not served and against whom any order is made in his absence to have the order set aside on the ground that the condition precedent to the exercise of jurisdiction for making the order has not been fulfilled. See Obimonure v. Erinosho (1966) 1 All NLR 250 at p. 252; Scott-Emuakpor v. Ukavbe (1975) SC 41 at 47; Odita v. Okwudinma (1969) 1 ANLR 228 at 231; and Craig v. Kanseen (1943) 1 AER at 108 per Lord Greene M.R.”
In the instant matter, the appellants’ counsel has not been duly served the hearing notice in strict compliance with the order of court and so, the appellants who are at the receiving end of the omission have had the instant default judgment entered against them. The omission is a fundamental one, entitling them to have the said judgment conditional on due service of the said process set aside.
I would still have reached the same conclusion even on the premise of the provisions of Order 6 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 and Order 7 rule 4 of the High Court of Lagos State (Civil Procedure) Law 1994 Cap. 61, which would otherwise avail where personal services was not expressly required that is to leave the process with an adult person resident or employed at the address for service. This is so, as the service was on Miss Basirat Salawu (his once upon a time clerk) a stranger who was neither resident nor employed at the material time at the address for service. And so service on Basirat Salawu cannot by any stretch of imagination be regarded as one on the appellants’ counsel’s clerk as in the proviso to the said rules.
The issues in this matter have therefore been resolved in favour of the appellants.
My findings on the muddled service of the instant hearing notice on the appellants’ counsel in this matter (otherwise but without deciding the point having as it were, a tinge of denial of fair hearing as a factor) has culminated in the conclusion that the default judgment was totally irregularly obtained. It, therefore, seems to me that the appellants are entitled as of right ex debito justitia to have the default judgment set aside. See Hughes v. Justin (1894) 1 QB 667.
But before concluding this judgment, I must comment on the apparent delay in making the instant application, which is not in the circumstance prejudicial to rehearing of the matter on the merits. The appellants, it must be remembered, have consistently maintained that the disputed claim of N100,000.00 had been liquidated. I make these observations against the background that the application has merit.
In the result, I allow the appeal and make the following orders.
Both the ruling of 12/02/99 and the default judgment of 19/06/96 are hereby set aside. The Chief Judge of the Lagos State High Court is directed to assign this matter to another Judge to recommence de novo. I make no order as to costs.
JAMES OGENYI OGEBE, J.C.A.: I read before now, the leading judgment of my learned brother, Chukwuma-Eneh, JCA, just delivered and I agree with his reasoning and conclusion. Accordingly, I also allow the appeal and abide by the consequential orders made in the lead judgment, including the order of costs.
SULEIMAN GALADIMA, J.C.A.: I have had the privilege of reading, the judgment just delivered, by my learned brother, Chukwuma-Eneh, JCA. I am quite satisfied that he has fully considered all the issues which arose in this appeal. The central issue is whether or not, the service of the hearing notice on the solicitor for the appellants through one Miss Basirat Salawu, his once upon a time clerk, could be said to have satisfied the order of the lower court given on the counsel.
No doubt, the hearing notice was served on Basirat Salawu as clearly deposed to in the affidavit of service. This mode of service, which does not come within the strict order of the lower court. It is a flagrant disregard of the terms of the order of that court. The fact that Basirat Salawu of No. 25 Carter Street, which is near the appellants’ counsel’s chambers of 30 Carter Street, and who was former clerk of the counsel, but now a student of the University of Ilorin, does not warrant serving of the process on her.
I have reached the same conclusion that the appellants counsel has not been duly served with the hearing notice in strict compliance with the order of the lower court. The omission is a fundamental one.
For the fuller reasons meticulously set out in the lead judgment, which I adopt as mine, I entirely, agree with the conclusion. I too, would allow the appeal and order trial de novo before another Judge.
No orders as to costs.
- Uwensuyi-Edosomwan, SAN (with him, Ajibor, Esq. and Omongboru, Esq.)For Appellant
Alhaji A. A. OladunjoyeFor Respondent