AMADASUN v. EGHOSA & ANOR (2020)

AMADASUN v. EGHOSA & ANOR

(2020)LCN/14901(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/B/347/2016

RATIO

APPEAL: RULE ON PROLIFERATION OF ISSUES FOR DETERMINATION

Before I proceed further, may I pause here to say that the law is settled that an appellant or a party can distill, formulate or raise an issue for determination from one ground of appeal or more, but cannot frame more than an issue from one ground of appeal. Put plainly, two or more issues cannot be raised from one ground of appeal.

See Niger Const. Co. Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67) 787; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267; Lasisi Ogbe v. Sule Asade (2009) 18 NWLR (Pt. 1172) 106 and John Shoy Int’l Ltd. v. Federal Housing Anthony (2016) 14 NWLR (Pt. 1533) 427. PER ABRAHAM ADUMEIN, J.C.A.

APPEAL: WHERE SHOULD AN ISSUE FOR DETERMINATION ARISE FROM

The law is that an issue must arise from a ground of appeal and an issue not covered by a ground of appeal is incompetent. See A. G; Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646; State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; David Amadi v. Attorney-General of Imo State (2017) 11 NWLR (Pt. 1575) 92 and Dr. Ray Pedro Ugo v. Augustina Chinyelu Ugo (2017) 18 NWLR (Pt. 1597) 218. PER ABRAHAM ADUMEIN, J.C.A.

APPEARANCE: PRESUMPTION OF COURT WHERE A LEGAL PRACTITIONER HOLDS OUT HIMSELF AS APPEARING FOR A PARTY

The law is settled that once a legal practitioner holds out himself as appearing for a party, unless there is a contrary application or notice, the Court assumes that he is fully mandated or instructed to handle the case and go on with it on behalf of his client. See Shyllon v. Asein (1994) 6 NWLR (Pt. 353) 670 andFalomo v. Banigbe (1998) 7 NWLR (Pt. 559) 679.
If for any reason, there is a change of counsel by a party to a case, there are rules to be complied with and as it was held by the Supreme Court, “the Court does not have spoon-feed learned counsel on the law and rules” – per Ngwuta, JSC in Alhaji Rasaki Abiola Ekunola v. Central Bank of Nigeria & Anor (2013) 15 NWLR (Pt. 1377) 227 at 273. PER ABRAHAM ADUMEIN, J.C.A.
FAIR HEARING: WHETHER AN INDOLENT PARTY CAN COMPLAIN OF LACK OF FAIR HEARING

It is settled now that an indolent party cannot complain of lack of fair hearing and cannot be aided by the Court. See Vincent Ugo & Ors v. Diokpa Ummuna & Ors. (2018) 2 NWLR (Pt. 160) 102. PER ABRAHAM ADUMEIN, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

CHIEF JOSEPH AMADASUN APPELANT(S)

And

1. IYI EGHOSA (Suing Through His Lawful Attorney, Iyi Eweka Igbinovia) 2. OSAMEDE OSAROBO RESPONDENT(S)

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering The Leading Judgment): This appeal is against a ruling delivered on 17/03/2016 in Suit No. B/876/2010 between: Chief Joseph Amadasun v. Iyi Eghosa & Anor. by the High Court of Edo State, holden at Benin City, by Hon. Justice V. O. Eboreime.

The lower Court had on 12/02/2014 delivered a default judgment in favour of the 1st respondent, who was the defendant/counterclaimant in the suit instituted by Chief Joseph Amadasun (now deceased and substituted by the appellant). The said late Chief Joseph Amadasun, as claimant/judgment debtor, had by a motion on notice filed on 05/12/2014 sought the following orders:
“a. An Order for extension of time within which the Claimant/Judgment Debtor/Applicant to apply to set aside the default judgment of this Honourable Court delivered on 12th day of February, 2014 in suit No. B/876/2010.
b. An Order setting aside the default judgment delivered in this suit that is Suit No. B/876/2010 on the 12th of February, 2014 for non-service of hearing notice on the claimant/applicant.

An Order setting aside the execution

of the said default judgment on the 3rd of December, 2014 and attachment of vehicles of the claimant/applicant.
d. An Order relisting this suit and counter claim for trial and determination on its merit.
e. An Order staying further execution of the default judgment in this suit and or order setting aside the execution.”

The trial Court heard the said motion on notice, which was contested by the 1st respondent, and in a considered ruling delivered on the said 17/03/2016 dismissed the application. Being dissatisfied, the appellant appealed to this Court vide a notice of appeal filed on 18/03/2016.

On the basis of the appellant’s brief filed on 04/03/2019 and the respondents’ brief filed on 28/03/2019, this appeal was heard. In his brief, learned counsel for the appellant formulated three issues for determination:
“1. Whether without evidence of hearing notices ordered by the trial judge on the appellant were served on the appellant or his counsel before the Court proceeded to hear the matter does not amount to denial of fair hearing.
2. Whether the trial Judge was right when he heard that the

appellant did not produce sufficient reasons to enable the Court to set aside the default judgment.
3. Whether the trial judge was also right when he held that there was a delay in bringing the application and so refused the application.”

Learned counsel for the respondents, however, distilled a sole issue for determination as follows:
“Whether a party who has been served Court processes/hearing notices but chose to stay away from Court can complain of denial of fair hearing afterwards.”

The appellant’s notice of appeal is on pages 139 – 140 of the record it contains a lone ground of appeal as follows:
“GROUND OF APPEAL
1. The learned trial judge erred in law when he dismissed the motion to set aside default judgment filed by the claimant/appellant.
PARTICULARS OF ERRORS
i. The trial judge failed to appreciate the fact that the claimant/appellant was entitled to proper hearing notices after the withdrawal of his former counsel in order for him to know of the status of the case and the failure of the Court to appropriate this led the Court to an error in law.

The trial judge could not understand the legal effect of issuing a hearing notice on the defendant’s/appellant’s counsel who had withdrawn from the case and the hearing notice purportedly issued on two occasions were served by pasting in two different addresses contrary to the evidence before the Court and that led the Court to an error in law.
iii. The trial judge went out of legal armbit when he gloss around the issue of improper service of the hearing notice which is mandatory before a Court can assume jurisdiction as improper service and non-service amounts to the same thing in law.”

The appellant’s complaints, as can be deduced from the ground of appeal reproduced above relate to lack of fair hearing on the basis of improper service of hearing notice on him.

Issues 2 and 3 formulated by the learned counsel for the appellant do not arise from his sole ground of appeal and they are hereby struck out. The law is that an issue must arise from a ground of appeal and an issue not covered by a ground of appeal is incompetent. See A. G; Bendel State v. P.L.A. Aideyan (1989) 4 NWLR (Pt. 118) 646; State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; David Amadi v. Attorney-General of Imo State (2017) 11 NWLR (Pt. 1575) 92 and Dr. Ray Pedro Ugo v. Augustina Chinyelu Ugo (2017) 18 NWLR (Pt. 1597) 218.

Having juxtaposed the appellant’s surviving Issue 1 with the 1st respondent’s single issue, I adopt the respondent’s very apt issue, which is:
Whether a party who has been served Court processes/hearing notices but chose to stay away from Court can complain of denial of fair hearing afterwards.

The kernel of the appellant’s submissions on this live issue is that “there is no where to show that hearing notices ordered by the Court were served on the claimant or his counsel”. In urging the Court to resolve this issue in his favour, the appellant, through his counsel, submitted inter alia, as follows:
“The holding of the trial judge at page 69 line 5 of the record is not supported by evidence. The proof of service of a hearing notice is by the affidavit of service deposed to by a bailiff of the Court who served the process which must be filed in the case filed and the date of service indicated.
My lord, the trial judge in his holding of fact did not state which of the hearing notices were served, on what date by which bailiff served either on his claimant or his counsel whether contain in the case file or not before the judge proceeded with the hearing. It is our submission that in the absence of a clear finding from the records of appeal that hearing notice or notices were served on the appellant as ordered by the trial judge before the judge proceeded with the hearing in the absence

of the appellant and his counsel o/c the proceedings there in prove of the counter claim amount to a nullity.”

On behalf of the respondents, the arguments of learned counsel are, inter alia, as follows:
“We refer my lords to page two (2) of the records of appeal wherein the appellant herein as claimant at the trial Court provided his address for service vide his solicitors name and address. The same address for service is further provided by the appellant in his motion dated 10th July 2012 as shown on page 41 of the records of appeal.
We submit that evidence abound on the record of appeal particularly pages 69, wherein the lower Court stated clearly in paragraph 2 of the judgment contained in page 69 of the record that the appellant chose to stay away from Court despite service of hearing notices on him.
The appellant admitted in paragraph 4 of his affidavit contained in page 86 of the record that he briefed S. Okoro Esq. of S.I. Okoro & Co., who represented him at the trial. The said counsel S.I. Okoro, Esq. admitted being served with hearing notices on behalf of the appellant, in paragraphs 6 & 7 of his

affidavit in support of motion as shown on page 137 – 138 of the records of appeal.
We submit that it is not in doubt that the appellant was served with hearing notices at the trial, the question to be asked my lords is whether the service of the hearing notices on appellant’s counsel at the trial was good service of the said processes on the appellant.”

I have read the record of appeal and it is true that the appellant’s case was instituted by his learned counsel – Okoror Stephen, Esq. of Okoror and Okoror Chambers, No. 30, 1st East Circular Road, Benin City. In paragraph 10 of the affidavit in support of his motion on notice filed on 05/12/2014, the ruling thereon of which is the subject of this appeal, Chief Joseph Amadasun – the applicant and original appellant deposed that he “was never served any hearing notice in this case since I handed the case over to my former lawyer”. Meanwhile, Okoror Stephen, Esq., the appellant’s “former lawyer” filed a further affidavit on 04/12/2015 in support of the appellant’s motion on notice in which he deposed in

paragraphs 3, 4, 5, 6 and 7 as follows:
“3. That I was the counsel to the claimant to file the suit against the defendant.
4. That during the course of the proceedings in this case, I lost contact with the claimant/applicant who was out of the country at that time.
5. That I did not have the claimant/applicant foreign number to contact him telling him about the development in this case.
6. That because I did not have contact with the claimant/applicant I could not file a defence to the counter claim and informed him on the hearing notice served on me.
7. That the claimant/applicant was not aware that hearing notice was served on me on his behalf before judgment was given in this case.”

From the appellant’s affidavits in support of his motion, to set aside the default judgment, the issue or question of non-service or improper service on the appellant of hearing notice does not even arise. The alleged communication gap between the appellant and his legal practitioner is their internal affair and would not affect the jurisdiction of the lower Court to proceed to hear the 1st respondent’s counterclaim, when the Court’s

record showed that the appellant’s learned counsel had been served with hearing notice.
The law is settled that once a legal practitioner holds out himself as appearing for a party, unless there is a contrary application or notice, the Court assumes that he is fully mandated or instructed to handle the case and go on with it on behalf of his client. See Shyllon v. Asein (1994) 6 NWLR (Pt. 353) 670 andFalomo v. Banigbe (1998) 7 NWLR (Pt. 559) 679.
If for any reason, there is a change of counsel by a party to a case, there are rules to be complied with and as it was held by the Supreme Court, “the Court does not have spoon-feed learned counsel on the law and rules” – per Ngwuta, JSC in Alhaji Rasaki Abiola Ekunola v. Central Bank of Nigeria & Anor (2013) 15 NWLR (Pt. 1377) 227 at 273.
To say the least, the appellant did not make out a case of non-service or improper service of the processes and hearing notices of the lower Court.
The appellant, whose counsel on record was duly served with the relevant Court processes but failed, neglected or refused to avail himself of the opportunity afforded him to present his

case before the Court, cannot complain of lack of fair hearing. The appellant was indolent in prosecuting his claim and defending the 1st respondent’s counterclaim.
It is settled now that an indolent party cannot complain of lack of fair hearing and cannot be aided by the Court. See Vincent Ugo & Ors v. Diokpa Ummuna & Ors. (2018) 2 NWLR (Pt. 160) 102.

Having regard to the totality of the affidavit evidence before the trial Court, it was amply justified in dismissing the appellant’s motion on notice filed on 05/12/2014.

It is for all the reasons given above that I resolve the live issue against the appellant. Consequently, this appeal lacks merit and it is hereby dismissed.

The decision of the trial Court contained in its ruling rendered on 17/03/2016 is hereby affirmed.

The sum of N150,000.00 (One hundred and fifty thousand naira only) is hereby awarded as costs in favour of the respondents and against the appellant.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of

my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. just delivered. I am in complete agreement with the adroit reasoning leading to the inescapable conclusions reached therein. I therefore adopt the same as mine and I have nothing more to add.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the lead judgment just delivered by my learned brother, M.A.A. Adumein, J.C.A that the instant appeal lacked merit, and was dismissed with costs.
I agree with the said judgment and I abide with the consequential orders made as to costs.

Appeal is dismissed.

Appearances:

E. Oaikhena, Esq. For Appellant(s)

L. Evbayiro, Esq. For Respondent(s)