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AKINTOLA v. AKINTOLA & ORS (2022)

AKINTOLA v. AKINTOLA & ORS

(2022)LCN/16155(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, April 05, 2022

CA/IB/395/2019(R)

Before Our Lordships:

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

HON. JUSTICE LADIRAN AKINTOLA (As Beneficiary In The Estate Of Chief S.L. Akintola) APPELANT(S)

And

1. CHIEF ABAYOMI AKINTOLA 2. DR. BIMBOLA AKINTOLA (Administrator And Administratix Of The Estate Of Late S.I. Akintola And For Themselves And On Behalf Of The Estate Of Chief Faderera A. Akintola Deceased Administratix) 3. THE PROBATE REGISTRAR, HIGH COURT OF OYO STATE, IBADAN RESPONDENT(S)

 

RATIO

THE PURPOSE OF A NOTICE OF APPEAL

A Notice of Appeal is the constitutional means by which a party shows his dissatisfaction against the judgment of a Court. It is the foundation of an appeal as well as its spinal cord. It sets the ball rolling for the commencement of an appeal. This being so, for an appeal to be competent, it must be birthed by a competent Notice of Appeal. See ADELEKE VS. OYETOLA (2020) 6 NWLR (PT. 1721)440; PAGA D-E CHEMICALS LIMITED VS. NIGERIA DEPOSIT INSURANCE CORPORATION (2019) 2 NWLR (PT. 1657) 430; ALLANAH VS. KPOLOKWU (2016) 6 NWLR (PT. 1507)1; FIRST BANK OF NIGERIA PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348) 444; FIRST BANK OF NIGERIA PLC VS. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (PT. 1216) 247 AND AFRIBANK NIGERIA LIMITED VS. OWOSENI (1995) 2 NWLR (PT. 375) 110. PER OJO, J.C.A.

WHETHER OR NOT SERVICE OF AN ORIGINATING PROCESS ON A NAMED PARTY WHO OUGHT TO BE SERVED GOES TO THE ROOT OF THE COMPETENCE AND JURISDICTION OF A COURT TO ENTERTAIN THE SUIT

The issue of service of an originating process be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition is central, fundamental and very germane to the proceedings emanating therefrom. It is the foundation and pillar upon which the proceeding is built. It is well settled upon a thread of judicial authorities that the service of an Originating Process on a named party who ought to be served is indispensable in adjudication and goes to the root of the competence and jurisdiction of a Court to entertain the suit. Service of an Originating Process accords with Section 36(1) of the Constitution of the Federal Republic of Nigeria (as amended) which guarantees the right to fair hearing. It gives notice to a party of the pendency of an action against him and affords him the opportunity if he so desires to defend the action. Failure to serve an originating process on a party to the proceedings renders the entire proceedings a nullity. See AONDOAKAA VS. OBOT (2021) LPELR-56605 (SC); EMEKA VS. OKOROAFOR (2017) 11 NWLR (PT. 1577) 410; OKOYE VS CENTRE POINT MERCHANT BANK LIMITED (2008) 15 NWLR (PT. 1110) 335; KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 997) 377 AND OBIMONURE VS. ERINOSHO (1966) 1 ALL NLR 250. PER OJO, J.C.A.

WHETHER OR NOT A CASE IS AN AUTHORITY FOR WHAT IT ACTUALLY DECIDED

I like to reiterate the settled position of the law which is that a case is only an authority for what it actually decided. The facts and the law in the subsequent case must be the same that informed the earlier decision. In other words, decisions of Court must irredeemably relate to facts which inform them. See YANTABA VS. GOVERNOR, KATSINA STATE (2022) 1 NWLR (PT. 1811)259; EZE VS. UNIVERSITY OF JOS (2021) 2 NWLR (PT. 1760) 208; THOMAS VS. FEDERAL JUDICIAL SERVICE COMMISSION (2016) 11 NWLR (PT. 1523) 312; ALL PROGRESSIVES CONGRESS VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2015) 8 NWLR (PT. 1462) 531 AND BABATUNDE VS. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LIMITED (2007) 13 NWLR (PT. 1050) 113. PER OJO, J.C.A.

THE PURPOSE OF RULES OF COURT

It is trite that Rules of Court are made to guide the Court in the conduct of its business and not for fun. Where the Rules of Court specifically provides for the mode of service of an originating process, that method shall be followed. See UNION BEVERAGES LIMITED VS. ADAMITE CO. LIMITED (1990) 7 NWLR (PT. 162) 348 AND EMERALD ENERGY RESOURCES LIMITED VS. SIGNET ADVISORS LIMITED (2021) 8 NWLR (PT. 1779) 579.
In the book “Civil Procedure in Nigeria, 2nd Edition by FIDELIS NWADIALO, SAN, the learned author at pages 839 to 840 posits as follows:
“The Notice of Appeal is the only notice or written communication in the proceedings in the Court of Appeal that needs be served personally, unless the Rules or any other written law otherwise provides. However, 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 lies on the ground that the notice has not been personally served.
Notwithstanding the foregoing provision, a Notice of Appeal from a decision in the Court below may be served on a party to a proceeding there at his address for service given in that Court. The address may even be that of a Legal Practitioner who has not been retained for the purpose of the appeal. Notice of any application preparatory or incidental to the appeal may also be served in like manner, until the party gives notice of his address for service.
The Notice of Appeal or of Application (other than an ex parte application) must be served personally or in any other way provided for by the Rules on the respondent, otherwise the proceedings will be a nullity. If the notice of appeal is served on the Counsel who appeared for the respondent in the Court below, and the Counsel swears to an affidavit stating that he is not retained for the appeal and does not know the respondent’s whereabouts, no service is effected, and if the Court proceeds to hear the appeal on the basis of such service, the proceedings would be null and void.”
See also OBIMONURE VS. ERINOSHO (1966) 1 ALL NLR 250.
PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgement): This ruling is sequel to a Motion on Notice filed on behalf of the 1st Respondent on the 14th of March 2021 wherein he seeks an order of this Court striking out the Notice of Appeal filed in this appeal for being incompetent, invalid, null and void.

The Appellants had filed an appeal against the ruling of the Oyo State High Court of Justice sitting in Ibadan in Suit No:I/451/2013 delivered on the 5th of December, 2013 in which the learned trial Judge dismissed the Preliminary Objection filed by the Appellants and held at page 99 of the Record as follows:
“It is my respectful view that based on what has been said above, the Claimant has the locus standi to institute this suit and that the Court has the competence to adjudicate on it.
Accordingly, the Notice of Preliminary Objection fails and it is hereby dismissed.”

Dissatisfied with the ruling, the Appellants who were the Objectors filed an appeal. The Notice of Appeal was filed on the 11th of March 2019 pursuant to the Order of this Court granting the Appellants Leave to so do. The 1st Respondent on the 14th of March 2021 filed the instant Motion.

The Grounds of the Application are as follows:
1. That the Appellants’ Notice of Appeal dated the 6th day of March, 2019 and filed on 11th day of March, 2019 did not reflect the personal address for service of the 1st Respondent in this appeal.
2. The said Notice of Appeal was not served on the 1st Respondent.
3. That the defects contained in the said Appellant’s Notice of Appeal fatally affect the validity of the said Notice and in all, this instant appeal.

The application is supported by an affidavit of 7 paragraphs and a 7 paragraphed further affidavit deposed to by one Modupe Olayiwola Litigation Secretary in the chambers of Solicitors to the 1st Respondent. The application is further supported by a Written Address filed on 4th October, 2021. In opposition to the application, the Appellants filed a 7 paragraphed Counter-Affidavit deposed to by one Timileyin Olugbade, a Legal Assistant/Clerk in the law firm of Babalakin & Co on the 27th of October, 2021. The Written Address filed in support of the Counter Affidavit on the 4th of November, 2021 was deemed as properly filed and served on the 9th of November, 2021. The 1st Respondent/Applicant thereafter filed a Reply on Point of Law on the 15th of November, 2021.

The 2nd Respondent who was duly served with the Motion paper did not file any response.

In the Written Address in support of the Motion, learned Counsel to the 1st Respondent/Applicant nominated a sole issue for determination to wit:
“Whether from the circumstances of this case, the instant Notice of Appeal is competent”

For his part, learned Counsel to the Appellants/Respondents also submitted the following sole issue for determination:
“Whether the Appellants’ Notice of Appeal filed on 11th of March 2019 ought to be struck out”

At the hearing of this application on the 19th of January, 2021, Ife Olamiju of Counsel identified all the processes filed on behalf of the Applicant, relied on them and went on to adopt the Written Address filed on his behalf and the Reply on Point of Law as his oral submission in urging us to strike out the Notice of Appeal.

​On his part, O. Oshobi, SAN Learned Senior Counsel to the Appellants relied on the Counter-Affidavit filed on their behalf and adopted the Written Address filed in support as his oral arguments. While making his oral submission he further relied on the case of OPTIMUM C & E DEVELOPMENT LIMITED VS. AKE SHARE HOLDINGS LIMITED (2021) 18 NWLR (PT. 1807)148 AT 185-186 and urged us to dismiss the application.

The issues distilled by Counsel on both sides are basically the same even though couched differently. I however find the issue formulated by the 1st Respondent/Applicant more specific. I therefore adopt it as the issue for determination in this application.

It is the contention of the Applicants’ counsel that the Notice of Appeal filed by the Appellants which has the address of service of the 1st Respondent as that of his Solicitor and served on the Receptionist of the Law Firm of Biodun Abdu-Raheem & Co is incompetent.

He submitted the law requires that a Notice of Appeal being an originating process should be served personally on the Respondents. He called in aid of his argument the case of CHARLES UMEZINNE VS. FEDERAL REPUBLIC OF NIGERIA (2019) 3 NWLR (PT. 1660) 532.

​He further relied on the provisions of Order 2 Rules 5 and 6, Order 7 Rules 1 and 2 as well as Order 2 Rule 1(a) of the Court of Appeal Rules, 2016 to submit that an Appellant shall mandatorily state the Address for service on the Notice of Appeal and that such address should be where personal service of the Notice of Appeal can be effected. He cited the case of DR. STEPHEN ADI ODEY VS. CHIEF AGOM ALAGA (2021) 13 NWLR (PT. 1792)1 in support.

He argued that the failure of the Appellants to comply with the mandatory Rules on the service of a Notice of Appeal is not a mere irregularity but a fundamental breach which goes to the foundation of the appeal and affects the jurisdiction of the Court. He relied on the case of HON. EMEKA IHEDIOHA & ANOR VS. OWELLE ROCHAS ANAYO OKOROCHA (2016) 1 NWLR (PT. 1492)147 PG. 182 in support of his submission and urged us to hold that service of the Notice of Appeal on the Receptionist of a law firm is no service.

Arguing per contra, Counsel to the Appellants submitted the case of DR. STEPHEN ADI ODEY VS. CHIEF JOHN AGOM ALAGA (supra) relied on by the Applicant is not applicable as same was decided based on the Supreme Court Rules and not the Rules of this Court. He submitted that Order 2 Rule 3 of the Court of Appeal Rules allows for service of a Notice of Appeal on an address provided by a party at the lower Court.

He urged us to hold that the interpretation given by the Supreme Court on Order 2 Rule 3(1)(b) of the Supreme Court Rules is inapplicable to service of Notice of Appeal in this Court. He relied on the case of A.C.B. LTD. VS. HASTON (NIG) LTD (1997) 8 NWLR (PT. 515)110 to submit that judicial authority is applicable only where both cases are im pari material.

He further submitted that there is sufficient evidence before the Court that the Appellant has received a copy of the Notice of Appeal served through the office of his Solicitor and urged us to hold that the service was proper. He relied on the cases of SALEH VS. ABAH (2017) 12 NWLR (PT. 1578) 100 AND EMERALD ENERGY RESOURCES LIMITED VS. SIGNET ADVISORS LTD (2021) 8 NWLR (PT. 1779) 579 to support his argument.

The main complaint in this application is on the mode of service of the Notice of Appeal on the 1st Respondent.

A Notice of Appeal is the constitutional means by which a party shows his dissatisfaction against the judgment of a Court. It is the foundation of an appeal as well as its spinal cord. It sets the ball rolling for the commencement of an appeal. This being so, for an appeal to be competent, it must be birthed by a competent Notice of Appeal. See ADELEKE VS. OYETOLA (2020) 6 NWLR (PT. 1721)440; PAGA D-E CHEMICALS LIMITED VS. NIGERIA DEPOSIT INSURANCE CORPORATION (2019) 2 NWLR (PT. 1657) 430; ALLANAH VS. KPOLOKWU (2016) 6 NWLR (PT. 1507)1; FIRST BANK OF NIGERIA PLC VS. MAIWADA (2013) 5 NWLR (PT. 1348) 444; FIRST BANK OF NIGERIA PLC VS. T.S.A. INDUSTRIES LIMITED (2010) 15 NWLR (PT. 1216) 247 AND AFRIBANK NIGERIA LIMITED VS. OWOSENI (1995) 2 NWLR (PT. 375) 110.

​The issue of service of an originating process be it a Writ of Summons, an Originating Summons, a Notice of Appeal or a Notice of Petition is central, fundamental and very germane to the proceedings emanating therefrom. It is the foundation and pillar upon which the proceeding is built. It is well settled upon a thread of judicial authorities that the service of an Originating Process on a named party who ought to be served is indispensable in adjudication and goes to the root of the competence and jurisdiction of a Court to entertain the suit. Service of an Originating Process accords with Section 36(1) of the Constitution of the Federal Republic of Nigeria (as amended) which guarantees the right to fair hearing. It gives notice to a party of the pendency of an action against him and affords him the opportunity if he so desires to defend the action. Failure to serve an originating process on a party to the proceedings renders the entire proceedings a nullity. See AONDOAKAA VS. OBOT (2021) LPELR-56605 (SC); EMEKA VS. OKOROAFOR (2017) 11 NWLR (PT. 1577) 410; OKOYE VS CENTRE POINT MERCHANT BANK LIMITED (2008) 15 NWLR (PT. 1110) 335; KIDA VS. OGUNMOLA (2006) 13 NWLR (PT. 997) 377 AND OBIMONURE VS. ERINOSHO (1966) 1 ALL NLR 250.

Now, the facts relied upon by the Applicant are contained in paragraphs 4(a)-(e) and (j) of the Affidavit in support of the Motion. For ease of reference the said paragraphs are reproduced hereunder:
4. That I was informed by our Ife Olamiju Esq, at our office at the above address around 5:00pm on the 13th September, 2021 and I verily believe as true the following:-
a. That the Appellants filed a notice of appeal on the 11th day of March, 2019.
b. That the Appellants’ Notice of Appeal dated the 6th day of March, 2019 and filed on the 11th day of March, 2019 did not reflect the personal address for service of the 1st Respondent in this appeal.
c. The said Notice of Appeal was not served on the 1st Respondent.
d. That the Notice of Appeal was served on one Feludu Oyewande who is not the 1st Respondent or a party in this appeal.
e. That the affidavit of service of the said Notice of Appeal and the acknowledgment of service are herewith attached and marked Exhibit Ab1 and Ab2 respectively.
5. That the defects contained in the said Appellant’s Notice of Appeal fatally affect the validity of the said notice and in all, this instant appeal.

From the above, it is clear that the complaint of the Applicant is two-pronged. It is:
i. The address for personal service on the 1st Respondent/Applicant is not endorsed on the Notice of Appeal.
ii. That the Notice of Appeal was not personally served on the 1st Respondent/Applicant. Rather, it was served on one Feludu Oyewande who is neither the 1st Respondent nor a party to this appeal.

​The relevant paragraphs in the Counter Affidavit deposed to on behalf of the Appellants/Respondents are paragraphs 3 (i)–(iv) and 4 which are also reproduced hereunder:
3. The facts deposed to hereunder are facts within my personal knowledge pursuant to my aforesaid position or from information gleaned from documents pertaining to this matter that I have read or from information relayed to me by Adedayo Osijo (“one of the Counsel representing the Appellants”) via a telephone conference held around 10 a.m. on 13th October 2021 at our offices at 43A Churchgate Street, Victoria Island, Lagos that:
i. The 1st Respondent was Claimant before the High Court of Oyo State (the lower Court). The 1st Respondent’s writ was issued by “Biodun Abdu-Raheem Esq and Olawale Omoloye Esq” of Biodun Abdu-Raheem & Co. whose address for service was indicated to be No. 126 Abayomi, Iwo Road, Ibadan. It was clearly indicated on the writ that they were the legal representatives of the 1st Respondent.
ii. At all material times, the ‘address for service’ indicated for the Respondent before the High Court of Oyo State was: ‘No. 126 Abayomi Street, Iwo Road, Ibadan’ and not ‘High Court Complex, Ibadan’. The latter is the office address of the 1st Respondent.
iii. The Appellants, sued as defendants, lost at the lower Court (i.e. judgment was entered in favour of the 1st Respondent). As a result, the Appellants file their notice of appeal on 11th March 2019 within time and served same on him.
iv. The Appellants’ Notice of Appeal filed on 11th March 2019 before the lower Court was served on the Respondent via his lawyers at Biodun Abdu-Raheem & Co whose address for service is No. 126 Abayomi, Iwo Road, Ibadan.
4. Contrary to paragraph 5 of the Respondent’s affidavit in support of his Motion on Notice dated 14th September 2021, I verily believe the Appellants’ Notice of Appeal bears no defects and is valid and effective.”

From the deposition in the Counter Affidavit, it is clear the Appellants did not deny the fact that the 1st Respondent’s name was not endorsed on the Notice of Appeal. Their contention however is that the address on the Notice of Appeal is that of his solicitor in whose name the action at the lower Court was commenced and that the Notice was served on him through his named solicitors.

I like to reiterate the settled position of the law which is that a case is only an authority for what it actually decided. The facts and the law in the subsequent case must be the same that informed the earlier decision. In other words, decisions of Court must irredeemably relate to facts which inform them. See YANTABA VS. GOVERNOR, KATSINA STATE (2022) 1 NWLR (PT. 1811)259; EZE VS. UNIVERSITY OF JOS (2021) 2 NWLR (PT. 1760) 208; THOMAS VS. FEDERAL JUDICIAL SERVICE COMMISSION (2016) 11 NWLR (PT. 1523) 312; ALL PROGRESSIVES CONGRESS VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2015) 8 NWLR (PT. 1462) 531 AND BABATUNDE VS. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LIMITED (2007) 13 NWLR (PT. 1050) 113.

In the case of ODEY VS. ALAGA (2021) 13 NWLR (PT. 1792) 1, the 2nd Respondent filed an application which is in the nature of a Preliminary Objection to challenge the competence of the Notice of Appeal before the Supreme Court. Delivering the lead judgment, his Lordship, NWEZE, JSC at pages 39 to 41 paras H-A of the Report held thus:
“What is more, Order 2 Rule 3 and 4 of the Supreme Court Rules makes it mandatory for the Notice of Appeal to be served on all the Respondents and a breach of the Rules is not a mere irregularity but a fundamental breach to the foundation of the Appeal. ROSSEK V. A.C.B. LTD. (1993) 8 NWLR (PT. 312) 382, 437; A-G., LAGOS STATE VS. DOSUNMU (1989) 3 NWLR (PT. 111) 552, 556; POPOOLA VS. BABATUNDE (2012) 7 NWLR (PT. 1299) 302, 331.”
It is obvious from the foregoing that the above decision of the Supreme Court was reached pursuant to the provisions of Order 2 Rules 3 and 4 of its Rules.
It is trite that Rules of Court are made to guide the Court in the conduct of its business and not for fun. Where the Rules of Court specifically provides for the mode of service of an originating process, that method shall be followed. See UNION BEVERAGES LIMITED VS. ADAMITE CO. LIMITED (1990) 7 NWLR (PT. 162) 348 AND EMERALD ENERGY RESOURCES LIMITED VS. SIGNET ADVISORS LIMITED (2021) 8 NWLR (PT. 1779) 579.
In the book “Civil Procedure in Nigeria, 2nd Edition by FIDELIS NWADIALO, SAN, the learned author at pages 839 to 840 posits as follows:
“The Notice of Appeal is the only notice or written communication in the proceedings in the Court of Appeal that needs be served personally, unless the Rules or any other written law otherwise provides. However, 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 lies on the ground that the notice has not been personally served.
Notwithstanding the foregoing provision, a Notice of Appeal from a decision in the Court below may be served on a party to a proceeding there at his address for service given in that Court. The address may even be that of a Legal Practitioner who has not been retained for the purpose of the appeal. Notice of any application preparatory or incidental to the appeal may also be served in like manner, until the party gives notice of his address for service.
The Notice of Appeal or of Application (other than an ex parte application) must be served personally or in any other way provided for by the Rules on the respondent, otherwise the proceedings will be a nullity. If the notice of appeal is served on the Counsel who appeared for the respondent in the Court below, and the Counsel swears to an affidavit stating that he is not retained for the appeal and does not know the respondent’s whereabouts, no service is effected, and if the Court proceeds to hear the appeal on the basis of such service, the proceedings would be null and void.”
See also OBIMONURE VS. ERINOSHO (1966) 1 ALL NLR 250.
The position of the law advanced by the learned author as stated above is that a Notice of Appeal must be served on a Respondent personally. This is the general rule. The exception is that the requirement for personal service may be provided for by legislations or Rules of Court. He further posits that where a Court is satisfied that the Notice of Appeal has in actual point of fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the Notice has not been personally served.
The instant application was brought pursuant to the provisions of Order 2 Rule 1 Court of Appeal Rules, 2016 which is impari materia with Order 2 Rule 1 contained in the 2021 Rules of this Court which reads thus:
“Every Notice of Appeal shall, subject to the provision of Order 2 Rule 8, be served on the Respondent personally or by electronic mail to the electronic mail address of the Respondent: 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 in accordance with this Rule.”
It is clear from the foregoing that Order 2 Rule 1 (a) of the Rules of this Court provides that a Notice of Appeal shall be served personally on a Respondent or sent to his electronic mail (e-mail). It however contains a proviso which renders incompetent any objection premised on the ground that the Notice of Appeal was not served in accordance with the Rule. In other words, no objection shall lie on the ground that the Notice of Appeal was not personally served on the Respondent.
The object of a proviso is normally to create exceptions to or relax in a defined sense the limitations imposed or powers conferred by an enactment or document. See AMUDA VS. FEDERAL REPUBLIC OF NIGERIA (2021) 7 NWLR (PT. 1774) 130; NIGERIA DEPOSIT INSURANCE CORPORATION VS. OKEM ENTERPRISES LIMITED (2004) 10 NWLR (PT. 880) 107; AMALGAMATED TRUSTEES LIMITED VS. ASSOCIATED DISCOUNT HOUSE LIMITED (2007) 15 NWLR (PT. 1056)118.
It is my view and I so hold that the proviso to Order 2 Rule 1(a) of the Rules of this Court operates to relax whatever hardship the requirement to effect personal service of a Notice of Appeal may occasion. This is fortified by the provision of Order 2 Rule 1(b) of the Court of Appeal Rules which provide thus:
“Except as may be otherwise provided in these Rules or in any other written law, it shall not be mandatory for notices, orders, summonses, warrants or other processes of the Court to be served personally.”
A community reading of the provisions of Order 2 Rules 1(a) and (b) is to the effect that it is not mandatory to serve a Notice of Appeal on the Respondent personally. The important thing is for him to have Notice of same. It is trite that a Court of law should administer justice in accordance with Rules of Practice and Procedure. I wish to further emphasise that Rules of Court are made to regulate proceedings in Court and to assist parties in the presentation of their case.
​Furthermore, there is no doubt that Courts have over the years leaned heavily on the side of doing substantial justice while interpreting the provisions of Rules of Court and in so doing it is always borne in mind that justice is not only done but should be seen to have been done to all parties. A Court must never interpret a Rule of Court to defeat access to justice which is guaranteed by the Constitution. See BOYE INDUSTRIES LIMITED VS. SOWEMIMO (2022) 3 NWLR (PT. 1817) 195; FIDELITY BANK PLC VS. MONYE (2012) 10 NWLR (PT. 1307)1 AND PEOPLES DEMOCRATIC PARTY VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2012) 7 NWLR (PT. 1300) 538.
It is further an established position of law that service of Court process on Counsel is good and competent service on the party unless otherwise ordered by the Court. See SALEH VS. ABAH (2017) 12 NWLR (PT. 1578) 100 AND ODUTOLA VS. KAYODE (1994) 2 NWLR (PT. 324) 1.
​In this appeal, it is not disputed that the Notice of Appeal was served on the Receptionist in the office of the Counsel to the Applicant. See Exhibits AB1 and AB2 attached to the further affidavit in support. Upon a careful consideration of the facts in this case and in particular that the Applicant does not deny that he has notice of the pending appeal, it is my humble view that service of the Notice of Appeal through his Counsel is good service. After all, justice is about fairness. Moreover, the law is trite that the object of all types of service of Court processes whether personal or substituted is to give notice to the party on whom service is to be effected of the pendency of the case so he can respond appropriately. See AKEREDOLU VS. ABRAHAM (2018) 10 NWLR (PT. 1628) 510 AND AHMED VS. AHMED (2013) 13 NWLR (PT. 1377) 274.
It has been held that the appearance of a Respondent in Court constitutes the strongest evidence that the process of Court in question has been served on him and he can no longer complain that he has not been served. See REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA VS. ETIM (2017) 13 NWLR (PT. 1581) 1; VAB PETROLEUM VS. MOMAH (2013) 14 NWLR (PT. 1374) 284 AND OKESUJI V. LAWAL (1991) 1 NWLR (PT. 170) 661.
​Parties have joined issues in this appeal by filing their respective Briefs of Argument. The objective of service has thus been achieved. The 1st Respondent/Applicant is aware of the pending appeal. A refusal of this application would not occasion any miscarriage of justice on him and I so hold.

It is in the light of the foregoing that I find no merit in this application and it is accordingly dismissed.
Parties are to bear their respective costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the opportunity of reading the draft copy of the ruling of my learned brother, FOLASADE AYODEJI OJO, JCA. I entirely agree with his reasoning and the conclusions arrived at that this appeal lacks merit and deserves to be dismissed. Further on this, my learned brother has meticulously and quite efficiently dealt with all the salient issues nominated by the Applicant for the determination of this appeal and there seems to be nothing new to say.

​In considering the appeal, my lord has dealt with the issue of service of Notice of Appeal personally on the Respondent as provided by Order 2 Rule 1(a) and (b) of the Court of Appeal Rules, 2016. It is clear that from the provisions of Order 2 Rule 1 (a) and (b) of the Court of Appeal Rules, 2016, the Court has the power or duty to hold that personal service is not necessary if the Court is satisfied that the existence of the Notice of Appeal has been communicated to the Respondent. See SKENCONSULT (NIG) LTD & ANOR V. UKEY (1981) LPELR-3072 (SC) and UNITED NIGERIA PRESS LTD & ANOR V. ADEBANJO (1969) LPELR-25571 (SC).

Consequent upon the above and the more elaborate reasons advanced in the ruling. I also find that the instant judgment lacks merit and it is accordingly dismissed.

ABBA BELLO MOHAMMED, J.C.A.: In this application, the 1st Respondent/Applicant is challenging the competence of the Notice of Appeal initiating this appeal on the grounds that the address for personal service on the 1st Respondent is not endorsed on the Notice of Appeal but that of the 1st Respondent’s Solicitor; and that the Notice of Appeal was not personally served on the 1st Respondent but on one Feludu Oyewande. The contention of the 1st Respondent is that this has rendered the Notice of Appeal and the appeal incompetent.

It is trite that the essence of service of Court process is to bring to the notice of the party to be served the contents of the process to enable him respond to same if he so desires. See: OLUWAROTIMI ODUNAYO AKEREDOLU v DR. OLUSEGUN MICHAEL ABRAHAM & ORS (2018) 10 NWLR (Pt. 1628) 510, per Okoro, JSC at page 539; and NCSU v EKASA & ORS (2021) LPELR-54752(CA), per Adumein, JCA at page 71 para. C.

As highlighted in the lead ruling just delivered by my learned brother FOLASADE AYODEJI OJO, JCA, the mode of service of Court process is generally provided in the relevant Rules of Court which guide its practice and procedure. In the case of a Notice of Appeal, Order 2 Rule 1 of both the Court of Appeal Rules, 2016 and the extant Court of Appeal Rules, 2021, which guides this Court, provide for Notice of Appeal to be served on the Respondent personally or by electronic mail, but contain a proviso that where 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 be entertained on the ground of non-service of the Notice of Appeal.
​In the instant appeal, the parties have already joined issued by exchanging briefs of argument. There can be no better evidence that the Notice of Appeal has come to the notice of the 1st Respondent that the fact that he had filed and exchanged Briefs of Argument.

I therefore have no hesitation in concurring with the well-reasoned lead ruling of my learned brother, FOLASADE AYODEJI OJO, JCA that the 1st Respondent’s protest of non-service in this application lacks merit.
Accordingly, I join in dismissing same.

Appearances:

O. OSHOBI, SAN, with him, S. I. ONUEGBU and M. Y. ABDULMUMIN For Appellant(s)

IFE OLAMIJU, with him, AYODEJI ILORI – for 1st Respondent
2nd Respondent’s Counsel Absent For Respondent(s)