APC v. AGUMA & ORS
(2020)LCN/14802(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, November 30, 2020
CA/PH/215/2020(R)
RATIO
APPEAL: CIRCUMSTANCES THE COURT OF APPEAL CAN SET ASIDE ITS DECISION
This Court has the power to set aside its decision in the following circumstances: –
1. Where the judgment was obtained by fraud or deceit either in the Court or of one or more of the parties.
2. When the judgment is a nullity in which case a person affected by such order is entitled ex debito justitiae to have it set aside.
3. When it is obvious that the Court was misled into giving such judgment under a mistaken belief that the parties consented to it.
4. Where in a cross appeal, the respondent’s cross appeal was not considered in the judgment.
5. Where the judgment was given in the absence of jurisdiction; and
6. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See DIKE VS. STATE (2018) 13 NWLR (PT. 1635) 35 SC; ELIAS VS. ECOBANK NIG. PLC (2017) 2 NWLR (PT. 1549) 175 CA; TOMTEC (NIG) LTD VS. FHA (2009) 18 NWLR (PT. 1173) 358;JEV VS. IYORTYOM (2015) 15 NWLR (PT. 1483) 484. PER IDRIS, J.C.A.
APPEAL: PROCEDURE FOR SETTING ASIDE DECISION OF THE COURT OF APPEAL
At the Court of Appeal and by virtue of Order 6 Rule 11 of the Court of Appeal Rule 2016, the decision can be set aside if an application is made to that effect within fourteen (14) days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause. Order 6 Rule 11 of the Court of Appeal Rules 2016 expressly provides as follows:
“11. An application to set aside any judgment or ruling shall not be brought unless it is filed within fourteen days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.”
An Applicant has the responsibility of placing sufficient materials before the Court to warrant granting the application. Once an Applicant can show good and sufficient cause, the application will be granted in the interest of justice. See WILLIAMS VS. HOPERISING VOLUNTARY FUNDS SOCIETY (1982) 1 -2 SC 145; N. N. S. CO. LTD VS. ESTABLISHMENT SIWA OF VADUZ (1990) 7 NWLR (PT. 164) 526. PER IDRIS, J.C.A.
APPEAL: WHETHER A RESPONDENT CAN OBJECT TO THE HEARING OF THE APPEAL WHERE THE NOTICE OF APPEAL HAS BEEN COMMUNICATED TO THE RESPONDENT
It is settled that once the Court is satisfied that the notice of appeal has in fact been communicated to a Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally. See IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (PT. 1492) 147. PER IDRIS, J.C.A.
SERVICE: DUTY OF A PERSON WHO HAS BEEN DENIED SERVICE OF PROCESS AND AFFIDAVIT OF SERVICE HAS BEEN MADE
The law is now settled that where there is an affidavit of service of a Court process as in this case, but service is being denied, the person denying being served has to swear to a Counter Affidavit. See UBA PLC VS. V. J. M. & CO NIG. LTD (2016) 5 NWLR (PT. 1504) 171; ETHIOPIAN AIRLINES VS. ONU (2005) 11 NWLR (PT. 936) 214. PER IDRIS, J.C.A.
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
ALL PROGRESSIVES CONGRESS APPELANT(S)
And
- RT. HONOURABLE IGO AGUMA 2. MR. ISAAC ABOTT OGBOBULA (Chairman, Caretaker Committee Of All Progressive Congress, Rivers State) 3. COMRADE ADAMS OSHIOMHOLE RESPONDENT(S)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This Ruling is in respect of the application filed by the 3rd Respondent/Applicant for the following reliefs:
“1. AN ORDER of this Court setting aside the Order of Substituted Service made by this Court on the 16th day of July, 2020 in favour of the Appellant/Applicant in respect of Appeal No. CA/PH/215/2020 between All Progressive Congress Vs. RT. Hon. Igo Aguma & 2 Ors.
2. AN ORDER of this Court setting aside the service of Notice of Appeal, Record of Appeal, Appellant Brief of Argument and other Court Processes purportedly served on the 3rd Respondent at No. 65 Aba Road Port Harcourt, Rivers State.
3. AN ORDER setting aside the proceedings of 14th day of October, 2020 as no Hearing Notice was served on the 3rd Respondent/Applicant.
4. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstance.”
The grounds upon which the application was brought are as follows:-
“1. That Barr. Obinna Ajoku the Principal Head of Obinna Ajoku & Co., got to know about the pendency of this Appeal and the order
1
of substituted service of the court processes on the 3rd Respondent when he spoke with Barr. Emeka Etiaba SAN, counsel to the 1st Respondent on the 14th day of October, 2020.
2. On hearing about the pendency of this Appeal, he quickly called the 3rd Respondent to confirm if he is aware that the extant Appeal has been filed against him at the Court of Appeal.
3. The 3rd Respondent told him that he is not aware of any such pending Appeal at the Court of Appeal against him.
4. That nobody served him with any Court process from the Court of Appeal.
5. That the address used in the application for the Order for Substituted Service is not meant for him to know about the pendency of the Appeal.
6. That he has never lived or worked at No. 65, Aba Road, Port Harcourt, Rivers State, the address of the substituted service and same has never been his address.
7. As at the time the Appeal was instituted, he was no longer the Appellant Chairman and cannot be served through the Appellant or its address.
8. That the essence of substituted service or service personally is to bring the notice of the pendency of the Appeal to him and that
2
serving the Court Processes on the above address cannot serve this purpose.
9. That the said Order of Substituted Service was obtained in bad faith as the address on the Order has never been his address and that the Appellant knows that No. 65 Aba Road Port Harcourt Rivers State is not his address.
10. That the Service of this Process of the Court in the above address and conducting of subsequent proceedings in this appeal amount to shaving him in his absence and denial of his constitutionally guaranteed right.
11. That it will be in the interest of justice to grant this application.
The application was supported by an affidavit of 6 paragraphs deposed to by one Ezekiel Agbo. The Applicant also filed a Further Affidavit of 6 paragraphs and 2 verifying affidavits also deposed to by Ezekiel Agbo to support the application.
The Appellant/Respondent filed a counter affidavit of 8 paragraphs and a Further Affidavit of 8 paragraphs in opposition to the application. The affidavits were deposed to by Anesa Eniotse.
The 1st and 2nd Respondents did not file any process in opposition to the application.
The 3rd Respondent/Applicant
3
and the Appellant/Respondent to the application filed written addresses were adopted at the hearing of the application.
Learned counsel for the 3rd Respondent/Applicant has argued that the 3rd Respondent’s address for service was 13 Aso Drive, Maitama, Abuja, and not the address contained in the Order of substituted service. That the 3rd Respondent ought to have been served at the aforementioned address because he had ceased to be the National Chairman of the Appellant/Respondent before the appeal herein was filed.
It was submitted that it is in the interest of justice that the application be granted. The cases of BREDERO NIG. LTD VS. SHYANTOR NIG. LTD & ORS (2016) LPELR – 40205 (CA) and BARNABAS NWADIARO & ORS VS. THE PRESIDENT & MEMBERS OF THE CUSTOMARY COURT (2016) LPELR – 40925 (CA) were relied on.
Learned counsel for the Appellant/Respondent has argued that the application itself is incompetent when considered in line with Order 2 Rule 1(a) of the Rules of Court. That the Applicant having become aware of the appeal since 14th October, 2020, he cannot take any step targeted at not hearing the appeal.
4
It was argued that the only address the Appellant/Respondent could have served the Applicant was at No. 65, Aba Road, Port Harcourt, Rivers State which was the address provided in the originating summons as the address of the Applicant in fulfillment of the requirement of Order 2 Rule 3 of the Rules of this Court. That all the processes filed on behalf of the 3rd Respondent at the Court below showed that the Applicant had affiliation with No. 65, Aba Road, Port Harcourt, Rivers State.
It was submitted that the affidavit filed in support of the application was bereft of any material that could persuade this Court to set aside its own orders made on 16th July, 2020 or its proceedings of 14th October, 2020.
It was further contended that the Applicant was served with the hearing notice of 14th October, 2020 on the 12th of October, 2020, and that this Court is entitled to judicial notice of its processes to form an opinion on matters before it.
The Court was urged to dismiss this application with cost. Reliance was placed on the cases of OKAFOR VS. NNAIFE (1987) 4 NWLR (PT. 64) 120; TOMTEC NIGERIA LIMITED VS. FHA (2009) LPELR – 3256 (SC); AYOADE VS. STATE (2020) LPELR – 49379 (SC).
5
Having read the written addresses and the entirety of the processes filed, the only issue for determination is whether it will be in the interest of justice to grant the application?
This Court has the power to set aside its decision in the following circumstances: –
1. Where the judgment was obtained by fraud or deceit either in the Court or of one or more of the parties.
2. When the judgment is a nullity in which case a person affected by such order is entitled ex debito justitiae to have it set aside.
3. When it is obvious that the Court was misled into giving such judgment under a mistaken belief that the parties consented to it.
4. Where in a cross appeal, the respondent’s cross appeal was not considered in the judgment.
5. Where the judgment was given in the absence of jurisdiction; and
6. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See DIKE VS. STATE (2018) 13 NWLR (PT. 1635) 35 SC; ELIAS VS. ECOBANK NIG. PLC (2017) 2 NWLR (PT. 1549) 175 CA; TOMTEC (NIG) LTD VS. FHA (2009) 18 NWLR (PT. 1173)
6
358;JEV VS. IYORTYOM (2015) 15 NWLR (PT. 1483) 484.
At the Court of Appeal and by virtue of Order 6 Rule 11 of the Court of Appeal Rule 2016, the decision can be set aside if an application is made to that effect within fourteen (14) days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause. Order 6 Rule 11 of the Court of Appeal Rules 2016 expressly provides as follows:
“11. An application to set aside any judgment or ruling shall not be brought unless it is filed within fourteen days from the date of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.”
An Applicant has the responsibility of placing sufficient materials before the Court to warrant granting the application. Once an Applicant can show good and sufficient cause, the application will be granted in the interest of justice. See WILLIAMS VS. HOPERISING VOLUNTARY FUNDS SOCIETY (1982) 1 -2 SC 145; N. N. S. CO. LTD VS. ESTABLISHMENT SIWA OF VADUZ (1990) 7 NWLR (PT. 164) 526.
From the body of the application itself, it appears the decision sought to be set aside was
7
made on the 16th day of July, 2020, and this application was filed on the 28th of October, 2020, outside the 14 days period prescribed by Order 6 Rule 11. There is no relief seeking an extension of time within which to bring the application. For this reason, reliefs 1 and 2 on the motion paper should not be granted.
Assuming reliefs 1 and 2 are grantable, it is clear that by paragraphs 3(a) and (b) of the affidavit filed in support of this application that the 3rd Respondent/Applicant stated that he became aware of the appeal on the 14th day of October, 2020. If this is taken as the truth, by the provision of Order 2 Rule 1(a) of the Rules of this Court,the 3rd Respondent/Applicant herein cannot present any objection aimed at stultifying the hearing of the appeal which is clearly what this application seeks to achieve. It is settled that once the Court is satisfied that the notice of appeal has in fact been communicated to a Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally. See IHEDIOHA VS. OKOROCHA (2016) 1 NWLR (PT. 1492) 147. For this reason, reliefs 1 and 2 on the motion paper are also not grantable.
8
Assuming further that reliefs 1 and 2 are indeed grantable, it is clear that Exhibit A attached to the Appellant/Respondent’s counter affidavit shows that the address provided in the originating summons as the address of the 3rd Respondent/Applicant is No. 65 Aba Road, Port Harcourt, Rivers State. There is nothing in the record to show that the 3rd Respondent/Applicant challenged the said address at the Court below. In fact, all the processes filed on behalf of the Applicant herein at the Court below showed that he had an affiliation with No. 65 Aba Road, Port Harcourt, Rivers State. The explanation that at that time the 3rd Respondent/Applicant herein was Chairman of the Appellant/Respondent and had thereafter ceased to be the Chairman does not hold water.
I agree with learned counsel to the Appellant/Respondent that the claim that Exhibit A and B annexed to the 3rd Respondent/Applicant’s Further Affidavit made the Appellant/Respondent aware of this address is clearly a non sequitor. The motion marked as Exhibit A was filed on the 15th July, 2020 long after the Notice of Appeal and the application for
9
substituted service had been filed. The same applies to Exhibit B dated 15th July, 2020.
In my view, the Appellant/Respondent herein complied fully with the provisions of Order 2 Rule 3 of the Rules of this Court by relying on the addresses of the parties at the Court below. Consequently, reliefs 1 and 2 cannot be granted.
The 3rd Respondent/Applicant wants this Court to set aside the proceedings of 14th October, 2020 on the ground that no hearing notice was served on him. I have carefully referred to the proceedings of this Court and it shows that the 3rd Respondent/Applicant was duly served with a hearing notice of the hearing of 14th October, 2020 on the 12th October, 2020. There is no doubt that this Court is entitled to take judicial notice of the processes in its file. The law is now settled that where there is an affidavit of service of a Court process as in this case, but service is being denied, the person denying being served has to swear to a Counter Affidavit. See UBA PLC VS. V. J. M. & CO NIG. LTD (2016) 5 NWLR (PT. 1504) 171; ETHIOPIAN AIRLINES VS. ONU (2005) 11 NWLR (PT. 936) 214.
The 3rd Respondent/Applicant herein has not
10
referred to the filings by the bailiff on the issue of hearing notices and has not filed a Counter Affidavit to such filings. In the circumstances, this Court cannot grant relief 3 on the motion paper. See generally AFRIBANK (NIG.) PLC VS. YELWA (2011) 12 NWLR (PT. 1261) 286.
On the whole, this application lacks merit and it is dismissed. I make no orders as to cost.
PETER OLABISI IGE, J.C.A.: I agree.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Ruling just delivered by my learned brother, MOHAMMED BABA IDRIS, JCA and I am in complete agreement with the reasoning and conclusion arrived at in the determination of the motion. I have nothing useful to add.
I also dismiss the application as unmeritorious. I also abide by the other order made therein.
11
Appearances:
Tuduru U. Ede ,SAN with him, C. W. Jerome For Appellant(s)
Emeka Etiaba, SAN and E. Etiaba SAN with him, N. Shikaan and E. Victor – for 1st Respondent.
M. S. Ibrahim with him, M. Muhammed – for 2nd Respondent.
O. Ajoku with him,E. Egbo – for 3rd Respondent. For Respondent(s)
