ARQUIETETURA ENGENHARIA COMMERCIAL LTD v. SARAHA HOMES (NIG) LTD & ANOR
(2022)LCN/16257(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 04, 2022
CA/A/1143/2018(R)
Before Our Lordships:
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
ARQUIETETURA ENGENHARIA COMMERCIAL LIMITED APPELANT(S)
And
1. SARAHA HOMES NIGERIA LIMITED 2. UKHAGBE NGOZI LINDA RESPONDENT(S)
RATIO
WHETHER OR NOT EVERY COURT OF RECORD HAS JURISDICTION TO SET ASIDE ITS JUDGEMENT WHERE THE JUDGEMENT IS VOID AB-INITIO
As a General Rule, every Court of Record has Inherent Jurisdiction on application and in appropriate cases and circumstances, to set aside its judgment or decision, where the judgment or decision is null and void ab-initio or where there was a fundamental defect in the proceedings, which vitiates and renders same incompetent and invalid. See APC VS NDUUL ORS (2017) LPELR-42415 (SC); ALHAJI TAOFEEK ALAO VS ACB LTD (2000) 2 SCNQR 1067 AT 1071; SALAMI OMOKEWU & ORS VS ABRAHAM OLABANJI ANOR (1996) 3 NWLR PART 435 126; AND SKENCONSULT NIG LTD VS UKEY (1981) 1 SC 6.
It is the understanding of this Court that this Court, under Order 6 Rule 10 of the Court of Appeal Rules of 2021 has power to set aside in certain circumstances, its decision like any other Court where circumstances demand, such as [i] where any of the parties obtained judgment by fraud or deceit [ii] where such a decision is a nullity, or; [iii] where it is obvious that the Court was misled into giving the decision, under a wrong belief that the Parties consented to it. In fact, these grounds for setting aside a Court’s own decision have more elaborately been stated in the case of ALAO VS ACB LTD (2000) 9 NWLR PART 672 AT 264 where the following (5) five conditions have been stated namely: a) When the judgment was obtained by fraud. b) When the judgment is a nullity such as when the Court itself was not competent. c) When the Court was misled into giving judgment under a mistaken belief that the Parties have consented to it. d) When judgment was given without jurisdiction. e)Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. See further: SKEN CONSULT VS UKEY (1981) 1 SC 6; OJIAKO VS OGUEZE (1962) 1 ALL NCR 58; IGWE VS KALU (2002) 14 NWLR (PART 787), 435 AT 453-454. PER BANJOKO, J.C.A.
WHETHER OR NOT THE SERVICE OF AN ORIGINATING PROCESS GOE STO THE ROOT OF THE COURT’S COMPETENCE TO ENTERTAIN A MATTER
Now, there is no doubt that the Service of an Originating Process, such as the Notice of Appeal in the instant case, is fundamental and goes to the root of the Court’s competence to entertain the cause or matter. In other words, the issue as to whether a Party was served the Originating Process in a Proceeding where Service is mandatory is one of constitutional and fundamental significance with serious consequences. If found that there was no Service, as the Proceedings commenced and subsequently concluded, the judgment would be a nullity because the Court did not have jurisdiction to hear the case. See OKOYE VS C.M.P.B. (2008) 15 NWLR (PART 110) 335; KIDA VS OGUNMOLA (2006) 13 NWLR (PART 997) 377; SKENCONSULT (NIG) LTD VS UKEY (1981) 1 SC AT 26.
Where the Originating Process was issued, it must be served on the Respondent. Without such service, he may not know that the Appellant has entered an appeal and on what ground. He should therefore be served so that the suit will be brought to his notice. The object of the service is, therefore, to give notice to the defendant, so that he may be aware of, and be able to resist, if he may, that which is sought against him. Where service of a process is required, failure to serve it is a fundamental vice and the party affected by the Order but was not served with the process is entitled ex debito justitiae to have the order set aside as a nullity. See OBIMONURE VS ERINOSHO & ANOR (1966) 1 ALL NLR 250; SKENCONSULT VS UKEY (1981) 1 SC 6 AT 26; UNITED NIGERIA PRESS ANOR VS ADEBANJO (1969) 1 ALL NLR 431 AT 432. PER BANJOKO, J.C.A.
WHETHER OR NOT THE BURDEN OF PROVING SERVICE RESTS ON THE PERSON ASSERTING THAT THERE WAS SERVICE
Meanwhile, the burden of proving service rests on the Person asserting that there was service. To establish service on a party to the suit, there must be actual proof of service on the necessary parties, i.e. the evidence of receipt vides signature of the party personally or his counsel, or an affidavit of service sworn to by the person who effected the service. Once received, the defendant is expected to proceed to arrange a defence. An affidavit of service must contain details on the following; when, who, what, and where. The fact that a Party was in Court on the day a matter is slated to come up is not necessarily a confirmation that the other Party was actually served with the Hearing Notice. See JOSHUA & OTHER VS AKHAGBE (2010) NSCQR VOLUME 41 PAGE 342. PER BANJOKO, J.C.A.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgement): This is a ruling on an Application brought by the Applicant pursuant to Section 6 (6) of the 1999 Constitution (as amended) seeking to set aside of the judgment of this Court delivered on the 30th day of March 2021, which Ruled that the lower Court ought to have declined jurisdiction to adjudicate on the 2nd Judgment/Debtor/Applicant, now 2nd Respondent’s Application filed on the 2nd of July 2015 which had sought to set aside the judgment delivered on the 20th day of April 2015 by Hon. Justice A.M. Talba of the High Court of Federal Capital Territory, (as he then was). This Court had further set aside the ruling of the High Court of the Federal Capital Territory delivered on the 25th day of May 2016, which had actually set aside its own judgment in Suit No. FCT/CV/2044/2014 and found in favour of the Appellant, by allowing the appeal and upturning the said reversal.
In the present Application dated and filed on the 29th day of October 2021, the 2nd Respondent/Applicant prays for the following Orders:-
1. An Order setting aside the judgment of this Honorable Court CA/A/1143/2018 delivered on the 30th of March 2021.
2. And for such further order or other orders as this Honorable Court may deem fit to make in the circumstances.
The Application is predicated on three (3) Grounds namely:
1. The 2nd Judgment Respondent/Applicant became aware of this appeal and judgment on the 28th October 2021 by a DHL parcel delivered to its construction site which contained two Hearing Notices, two Ex parte Applications for Writ of Possession and Garnishee respectively in the High Court of the FCT, Abuja to which the judgment of this Honorable Court delivered on the 30th day of March 2021 was attached thereto.
2. That there was No Service of the Notice of Appeal, Record of Appeal, Motion on Notice, for this appeal to be heard on the Appellant’s Brief alone, the Appellant’s Brief and Hearing Notices on the 2nd Respondent/Applicant, or the law firm of Olujinmi & Akeredolu that represented the 2nd Respondent at the trial of this suit at the lower Court.
3. A Party not served with Court Process leading to a judgment is ex debito justitiae entitled to have the judgment and Orders therein set aside.
The Application was supported by nine (9) Paragraph Affidavit deposed to by one Monsuru Popoola, an Executive Director Arquitetura Engenharia Commercial Limited on 29th day of October 2021. The said Affidavit had attached to it six documents marked as Exhibits “1-6” respectively
The six (6) documents attached to this Application are the following Exhibit 1 to 6:
a. Copy of judgment delivered by Peter Olabisi Ige (JCA) on 30th day of March, 2021, marked as Exhibit 1.
b. Copy of Notice of Ex parte Application for an Order of the Court on the Registrar of the Court to issue a Writ of Possession in respect of the property known as B115, Copa Cabana Estate, plot 5, Womba District, FCT, marked as Exhibit 2.
c. Copy of Writ of Summon together with the Statement of Claim dated and filed 14th July 2014, marked as Exhibit 3.
d. Copy of Certificate of Service dated 2nd September, 2014, marked as Exhibit 4.
e. Copy of Certificate of Service dated 3rd October, 2014, marked as Exhibit 5.
f. Copy of Certificate of Service dated 13th February, 2015, marked as Exhibit 6.
In the Supporting Affidavit which was deposed to by the Applicant’s Executive Director, it was averred that the Applicant became aware of this appeal and the judgment delivered therein by virtue of a DHL parcel delivered to the construction site of the Applicant at Plot 135, Cadastral Zone C10, Wumba District, Abuja on 28th October 2021 and was actually received 28th October 2021. It was their Counsel Akinyemi Olujimi who interpreted the content of the DHL parcel containing a judgment of this Court delivered on 30th Day of March 2021, together with the Enforcement Processes filed on the 24th June 2021 at the High Court of Federal Capital Territory by the Appellant.
The Applicant’s Executive Director averred further that there was no service of the Notice of Appeal, Record of Appeal, Hearing Notices, and Appellant’s Brief of Argument neither on it nor on its Counsel who represented it at the lower Court. Further, they were not put on Notice that the appeal will be heard on the Appellant’s Brief alone. Meanwhile, the Appellant earlier raised the issue of lack/improper service and abuse of Court process before the lower Court on 14th July 2014, but the Court only considered the issue of Abuse of Court Process and failed to attend to the issue of lack/improper service which is actually a fundamental issue.
The Applicant’s Executive Director further stated that the address for service of the Applicant as endorsed on the Originating Process filed on 14th July 2014 is Flat 3, Block 64, PTF Quarters, Cairo Street, Wuse II, Abuja, which is the Registered Office of the Applicant. He contended that the Service of Originating Process and other Processes at the lower Court was done without an Order of Substituted Service at the Construction Site of the Applicant at Plot 135, Cadastral Zone C10, Womba District, Abuja, which is neither the Registered Office of the Applicant nor the Residence of its Officers. Exhibit 4, 5, 6 (the Proof of Service) were mere choruses as this fundamental issue of improper service, would have been a reason for Cross-Appeal in this appeal, had it been that the Applicant was served with the Notice.
The Respondent responded by filing a Counter-Affidavit deposed to by one Abraham Oseni Litigating Secretary in Orchid Chamber and Written Address dated and filed 1st of December 2021. The Counter-Affidavit is attached with two (2) documents marked as Exhibit CA1 and Exhibit CA2.
In the Counter-Affidavit, it was deposed inter alia that there is no pending appeal before this Court in respect of this Application. The judgment of this Court, which the Applicant seeks to set aside, had been delivered more than 210 days ago before this Applicant filed this Application and the Applicant has not appealed against the judgment. The Applicant was served with the Notice of Appeal and Hearing Notice for Extension of Time, which culminated, to that judgment. Copy of the Court Proceeding was attached as Exhibit CA1.
It is also stated in the Counter-Affidavit that the Applicant was served with the Appellant’s Brief and the Hearing Notice of hearing the appeal on the Appellant’s Brief alone. Copy of the Record of Proceeding evidencing the Service of the Hearing Notice was attached as Exhibit CA2. All requisite Hearing Notices and Processes were served on the Applicant and the Panel of Justices confirmed this before hearing the appeal.
It is further deposed in the Counter-Affidavit that the Applicant constructed a big and popular estate known as Copa Cabana Estate and owns an Office in that estate where it has always received Court Processes and in fact, the judgment that prompted this Application was served on the Applicant at that address. The Applicant has no other address in Abuja.
It is also deposed in the Counter-Affidavit that the Applicant failed to file their Statement of Defence to the suit for three (3) years in the lower Court until the Respondent discontinued the suit. The Respondent re-filed the suit and the Applicant ignored all the Summons and Processes until judgment was delivered and later alleged non-service despite copious affidavits of service. In the same manner, the Applicant has also alleged that it was not served with the Processes of this suit at this Court despite copious Affidavits of Service deposed to by the Bailiff and the confirmation done by the Justices of the Court of Appeal. The 1st Respondent never alleged non-service both at the trial Court and this Court; it has always been the Applicant who complained of non-service.
It was further deposed that the Bailiff discovered that the Applicant did not have any address at Wuse 2, Abuja and called the Applicant on phone whereupon the Applicant directed the Bailiff to Copa Cabana Estate where the service was effected. The address of the Applicant on the Notice of Appeal and all the Processes of Court of Appeal is Copa Cabana Estate. Therefore, the Court of Appeal is now functus officio having delivered judgment in the suit, which was after it realized that the Parties were properly served.
In the Further and Better Affidavit deposed to by one Oluwole Ilori, a Counsel in the Law Firm of Olujinmi and Akeredolu, it was averred that the Applicant having been aware of the suit through a DHL parcel, applied to the Office of the Deputy Chief Registrar initially through a letter herein marked as Exhibit Z1 for the Certified True Copy of all the appeal Processes and the Hearing Notices but got no response. They then re-applied through Applications marked as Exhibit Z2 and Z3 to search and ascertain the status of the file. Through this search conducted by the Applicant’s Counsel in the presence of Court Officials at the Court of Appeal Record Office, no proof was seen of Service or Affidavit of Service of Appellant’s Brief of Argument; Notice of Motion for the Appeal to be heard on the Appellant’s Brief alone; or of any Hearing Notice issued to the 2nd Respondent dated 11th January 2020 and 29th March 2021.
It was further deposed that the Record of Appeal, which was purportedly served on the Applicant, was endorsed as received by a Person who did not indicate his Rank, Signature and Name whereas, by the Records, it could be seen that Service effected on the 1st Respondent, was properly received. Neither Hearing Notice nor the Proof of Service in respect of the proceeding held on 15th October 2020 was seen in the Original Court file. Only the Carbonized Copy of the Hearing Notices not served on the 2nd Respondent dated 11th January 2020 and 29th March 2021 were found.
Also deposed in the affidavit is that the Order of the Court that the appeal be heard on the Appellant’s Brief was not found in the file during the search and there was no evidence that the Order was served on the Applicant. The alleged Motion for Leave to Appeal was not found in the Original File and there was no evidence of Service of the Motion and the Court Order on the Applicant.
It was also deposed in the affidavit that the Applicant’s Address as endorsed by the Respondent on the Writ of Summon and Statement of Claimant the lower Court and the Status Report from Corporate Affairs Commission is PTF Quarters, Cairo Street, Wuse II, Abuja. The Respondent’s Counsel that filed this appeal altered the Applicant’s address for service without an Order of the Court. The Respondent’s Counsel knew that the address of the Counsel who represented the Applicant at the lower Court is 5th Floor, NION Insurance Plaza, Central Business District, Abuja, and had been exchanging Processes with the Applicant’s Counsel via this address. The Processes exchanged by Counsels are marked Exhibit Z9 and Z10.
The Respondent filed a Written Address dated and filed 1st December 2021 with no issue raised but several arguments canvassed.
The Applicant in response to that filed a Written Address dated and filed 3rd of December 2021 with two issues submitted for determination of this Application, which are:
ISSUE ONE
Whether the Applicant is not entitled ex debito justitiae to have the judgment of this Honorable Court delivered on the 30th March 2021 set aside for lack of service of the Appeal Processes and Hearing Notices prior to the hearing and delivery of judgment in this appeal.
ISSUE TWO
Whether alteration of Address of Service on 2nd Respondent in the appeal processes by the Appellant contrary to the address of 2nd Respondent contained in the Originating Processes before the lower Court is not incompetent and renders any purported Service a nullity.
This Court observed that the issue one raised by the Applicant is sufficient to determine this Application and hereby adopt it for its decision.
ISSUE FOR DETERMINATION
Whether the Applicant is not entitled ex debito justitiae to have the judgment of this Honorable Court delivered on the 30th March 2021 set aside for lack of service of the appeal processes and hearing notices prior to the hearing and delivery of judgment in this appeal.
On this issue, learned Counsel to the Respondent submitted that the allegation of non-service canvassed by the Applicant is not founded based on Exhibit CA1 and CA2, which are Records of Proceeding of the Court of Appeal confirming that the Applicant was served with the Hearing Notices and the Processes. He also argued that since this Court had given its judgment on the appeal, the Court is already functus officio.
Learned Counsel submitted alternatively that where the judgment of the Court can be set aside, the Application must be filed within 14 days after delivery of the judgment. This application was not filed within 14 days and this is against Order 6 (10) of the Court of Appeal Rules, 2021. The Applicant also failed to support the Application with a Written address.
On the other hand, learned Counsel representing the Applicant submitted that Service of the Initiating Process or Hearing Notice constitutes the foundation on which the whole litigation or appeal is built, the absence of which, the whole Proceedings will be rendered void and the decision reached thereof shall be declared null. A Court has inherent jurisdiction to set aside the decision reached, Order made or judgment delivered for want of Service of Hearing Notice. The Applicant in this case was not served with the Hearing Notices leading to the judgment in this appeal. Exhibit CA1 and CA2 relied on by the Respondent are not proofs of service and the two documents did not indicate the date, where and how the notices were served. So the Applicant is entitled ex debito justitiae to have the judgment set aside. He relied on the case law authority of EZIM VS MENAKAYA (2018) 9 NWLR PART 1623 AT 126; IHEDIOHA VS OKOROCHA (2016) 1 NWLR PART 1492 SC 147; SKENCONSULT (NIG) LTD VS UKEY (1981) 1 SC 6; NPA VS SAMA (2020) 2 NWLR PART 1708; YAKUSAK VS XELA (NIG) LTD & ORS (2019) LPELR-48728 (CA); S.C ENG NIG VS NWOSU (2008) 3 NWLR PART 1074 P288 AT 313.
On the argument made by the Respondent that the Court is functus officio having delivered judgment in the case and that the Application was filed outside 14 days without supporting it with Written Address pursuant to Court of Appeal Rule 2021. Learned Counsel to the Applicant submitted that the Court has inherent powers to set aside the judgment notwithstanding being functus officio if the judgment is a nullity, obtained by fraud or fundamentally wrong. Reliance was placed on NPA VS SAMA (SUPRA).
Learned Counsel submitted further that the 2021 Rules of this Court relied on by the Respondent came into effect on the 1st November 2021 while the Applicant’s Motion to set aside was filed prior to the New Rules on the 29th October 2021. The applicable law to a case is the law prevailing at the time the cause of action arose, notwithstanding that the law had been revoked. He relied on the case law authority of GOVERNOR OYO STATE VS FOLAYAN (1995) 8 NWLR PART 413, 292.
Learned Counsel to the Applicant submitted finally that the Respondent altered the address for Service of the Applicant from PTF Quarters, Cairo Street, Wuse 2, Abuja, that was being filed at the lower Court to Copa Cabana Estate without the authority of the Applicant nor with leave of Court sought and obtained. He referred to Exhibits Z8 and Z9 filed at the lower Court to establish this. He also concluded that an appeal is a continuation of the trial at the lower Court and also relied on Order 2 Rule 3 of the Court of Appeal Rules 2016.
RESOLUTION OF THE ISSUE
As a General Rule, every Court of Record has Inherent Jurisdiction on application and in appropriate cases and circumstances, to set aside its judgment or decision, where the judgment or decision is null and void ab-initio or where there was a fundamental defect in the proceedings, which vitiates and renders same incompetent and invalid. See APC VS NDUUL ORS (2017) LPELR-42415 (SC); ALHAJI TAOFEEK ALAO VS ACB LTD (2000) 2 SCNQR 1067 AT 1071; SALAMI OMOKEWU & ORS VS ABRAHAM OLABANJI ANOR (1996) 3 NWLR PART 435 126; AND SKENCONSULT NIG LTD VS UKEY (1981) 1 SC 6.
It is the understanding of this Court that this Court, under Order 6 Rule 10 of the Court of Appeal Rules of 2021 has power to set aside in certain circumstances, its decision like any other Court where circumstances demand, such as [i] where any of the parties obtained judgment by fraud or deceit [ii] where such a decision is a nullity, or; [iii] where it is obvious that the Court was misled into giving the decision, under a wrong belief that the Parties consented to it. In fact, these grounds for setting aside a Court’s own decision have more elaborately been stated in the case of ALAO VS ACB LTD (2000) 9 NWLR PART 672 AT 264 where the following (5) five conditions have been stated namely: a) When the judgment was obtained by fraud. b) When the judgment is a nullity such as when the Court itself was not competent. c) When the Court was misled into giving judgment under a mistaken belief that the Parties have consented to it. d) When judgment was given without jurisdiction. e)Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication. See further: SKEN CONSULT VS UKEY (1981) 1 SC 6; OJIAKO VS OGUEZE (1962) 1 ALL NCR 58; IGWE VS KALU (2002) 14 NWLR (PART 787), 435 AT 453-454.
Now, there is no doubt that the Service of an Originating Process, such as the Notice of Appeal in the instant case, is fundamental and goes to the root of the Court’s competence to entertain the cause or matter. In other words, the issue as to whether a Party was served the Originating Process in a Proceeding where Service is mandatory is one of constitutional and fundamental significance with serious consequences. If found that there was no Service, as the Proceedings commenced and subsequently concluded, the judgment would be a nullity because the Court did not have jurisdiction to hear the case. See OKOYE VS C.M.P.B. (2008) 15 NWLR (PART 110) 335; KIDA VS OGUNMOLA (2006) 13 NWLR (PART 997) 377; SKENCONSULT (NIG) LTD VS UKEY (1981) 1 SC AT 26.
Where the Originating Process was issued, it must be served on the Respondent. Without such service, he may not know that the Appellant has entered an appeal and on what ground. He should therefore be served so that the suit will be brought to his notice. The object of the service is, therefore, to give notice to the defendant, so that he may be aware of, and be able to resist, if he may, that which is sought against him. Where service of a process is required, failure to serve it is a fundamental vice and the party affected by the Order but was not served with the process is entitled ex debito justitiae to have the order set aside as a nullity. See OBIMONURE VS ERINOSHO & ANOR (1966) 1 ALL NLR 250; SKENCONSULT VS UKEY (1981) 1 SC 6 AT 26; UNITED NIGERIA PRESS ANOR VS ADEBANJO (1969) 1 ALL NLR 431 AT 432.
Meanwhile, the burden of proving service rests on the Person asserting that there was service. To establish service on a party to the suit, there must be actual proof of service on the necessary parties, i.e. the evidence of receipt vides signature of the party personally or his counsel, or an affidavit of service sworn to by the person who effected the service. Once received, the defendant is expected to proceed to arrange a defence. An affidavit of service must contain details on the following; when, who, what, and where. The fact that a Party was in Court on the day a matter is slated to come up is not necessarily a confirmation that the other Party was actually served with the Hearing Notice. See JOSHUA & OTHER VS AKHAGBE (2010) NSCQR VOLUME 41 PAGE 342.
Now, the Applicant has relied on 9-Paragraph Affidavit evidence deposed to by one Monsuru Popoola, her Executive Director, to establish the allegation of non-service of the processes. However, the Respondent has made some averments in its Counter-Affidavit to establish that the Applicant was actually served. Some of the averments are contained in Paragraphs 9, 10, 11, 12, 18.
Paragraph 9: That all requisite hearing notices and processes in Appeal No CA/A/1143/2018 were served on the Applicant by the Bailiff of the Court of Appeal and as such, services were confirmed by the Panel of Justices of the Court of Appeal before hearing the Applications filed in the appeal and before hearing the appeal.
Paragraph 10: That the Applicant constructed and owns a big and popular estate at Wunnba District known as Copa Cabana Estate and has an office within the said estate, where the Applicant has always received all Court processes including the judgment of the Court of Appeal which was served on the Applicant at that address and which service prompted the Applicant to file the extant application to set aside the said Judgement of the Court of Appeal.
Paragraph 12: The judgment of the Court of Appeal was served on the Applicant at the Applicant’s office at Copa Cabana Estate, Wunnba District and it was received by Executive Director of the Applicant.
Paragraph 18: That at the High Court, the Bailiff discovered that the Applicant had no address at Wuse 2, Abuja and called the phone numbers of the Applicant and he was directed to the Applicant’s office at the Copa Cabana Estate, Abuja.
Obviously, the above quoted paragraphs are specific averments containing clear contradictions of the Applicant’s Claim. Though the Applicant denied these in a General Traverse in Paragraph 4 of her Further Affidavit, it is a cardinal principle of law that replies to allegations or claims must be categorical and meet the averments of claim/allegations headlong with proper traverses. Allegations that are material, essential, and of great importance should be specifically traversed, and not confined to a General or Evasive denial. See the cases of BUHARI VS INEC & ORS (2008) LPELR-814 (SC); WALLERSTEINER VS MOIR (1974) WLR 99, LEWIS AND PEAT VS AKHIWIEN (1976) 6 SC 157; (1976) 6 SC (REPRINT) 159; OLALE VS EKWELENDU (1989) 4 NWLR (PT.115) PAGE 326, AND OKONKWO VS C.C.B. (NIG) PLC (2003) 2-3 SC 104. HIS LORDSHIP UTHMAN MOHAMMED held in IBEANU & ANOR VS OGBEIDE & ANOR (1998) LPELR-1387(SC), that:
“A proper traverse must be a specific denial or a specific non-admission. A general traverse ought not to be adopted in respect of essential and material allegations in the Statement of Claim. See LEWIS AND PEAT (NRL) LTD VS AKHIMIEN (1976) 1 ALL NLR, PART 1 AT 460 AND AKINTOLA VS SOLANO (1986) 2 NWLR (PART 24) 598; (1986) ALL NLR 395 AT 421.”
Also, the Apex Court in the case law authority of BAMGBEGBIN & ORS VS ORIARE & ORS (2009) LPELR-733 (SC) restated the sacrosanct principle of categorical denial of a specific averment in the following manner:
“I entirely agree with my brother that Paragraph 3, a general traverse, cannot in our law of pleadings, destroy the averment in Paragraph 28 of the Statement of Claim. It is the requirement of the law that a traverse must be concise and specific. It must deny the Statement of Claim in its specific detail and not just a rigmarole of or a dancing around the averments. Where a traverse, as in paragraph 3, is general, generic and omnibus, a plaintiff is handicapped in a reply to the Statement of Defence. That is possibly one reason why the law requires a traverse to be specific and not general.”
Where the above Principles of Law on Pleadings are not met, then the other Party is deemed to have admitted the Petitioner/Plaintiffs’ Pleadings. I refer to Paragraph 36 of Halsbury’s Laws of England Fourth Edition Re-issue Volume 30(i), which states the followings: “Any allegation and fact made by a Party in his pleading is deemed to be admitted by the other Party, unless he traverses it in his pleading or unless an automatic joinder of issue operates as a denial of it.
However, this Court takes cognizance of some new averments made in the Applicant’s Further and Better Affidavit sworn to by one Oluwole Ilori, some of which have to do with allegations imputing fraud in term of the Service of the Hearing Notices. For instance, Paragraph 12, 13 and 14 which contain thus:
Paragraph 12: There was no prove (sic) of Service or Affidavit of Service of the above mentioned 3, 4 and 5 Court Processes in the Original Court File, except the Record of Appeal, which was purportedly endorsed without the rank, signature and name of the recipient of the process on behalf of the 2nd Respondent unlike the 1st Respondent. Certified True Copy of the Proof of Service of the Records of Appeal seen in the Original Court file is attached and marked as exhibit Z4.
Paragraph 13: Neither a carbonized duplicate copy of the Hearing Notice issued nor Proof of Service of the Hearing Notice on the 2nd Respondent in respect of the Proceeding of Court held on 15th October 2020 was seen in the Original File.
Paragraph 14: The only two carbonized copy of Hearing Notices issued but not served on the 2nd Respondent are attached and marked as exhibit Z51 and Z52.
Now, it is clear that a Further Affidavit is limited to finding answers to the questions raised in the Counter-Affidavit, which the Appellant has not addressed or dealt with in the Main Supporting Affidavit. It is not the forum for the Appellant to bring new allegations therein. A Further Affidavit, as the name implies, must be further information of the facts contained in the Affidavit and deposition of new and separate facts. Therefore, a Further Affidavit is not a forum for introducing or advancing fresh points. That will be tantamount to re-opening the appeal from the side of the Appellant. See NWOBODO VS ONOH (1984) 1 SCNLR 1; ALHAJI ATIKU ABUBAKAR, GCON & 2 ORS VS ALHAJI UMARU MUSA YAR’ADUA & 5 ORS; EPR VOLUME 4 AT PAGE 333.
As could be seen from the above Paragraph 1 of the Further Affidavit, the Applicant has made grievous allegations of fraud against the Bailiff, who are actually officers of the Court, in respect of non-service. It is trite law that where frauds or wrongful conduct is alleged, it must be specifically pleaded and particulars of the fraud given to enable the party defending the allegation understand the case he is facing and prepare his defence. The Applicant has not done such in this Application. See HIGHGRADE MARITIME SERVICES LTD VS FIRST BANK (1991) LPELR-1364 (SC); DAVY BROS VS GARRET (1877) 7 CH 473 AND UNITED AFRICA CO LTD VS TAYLOR (1936) 2 W.A.C.A. 67.
Meanwhile, fraud is a Criminal Offence under the Penal Code. The law is that any such allegations must be proved beyond reasonable doubt. Section 138(1) and by virtue of Section 138(2), of the Evidence Act the burden of proving that any person has been guilty of a crime or wrongful act is subject to the provisions of Section 141 thereof, is on the person who asserts it, whether the commission of such act is or is not directly an issue in the action. The Applicant has not however discharged this burden. Reliance is placed on BABATUNDE & ANOR VS BANK OF THE NORTH LTD ORS (2011) LPELR-8249 (SC).
Furthermore, the Respondent has based its proof of service solely on Exhibits CA1 and Exhibit CA2, which are Certified Excerpts of the Record of Proceedings of this Court. The Applicant, on their own part, queried the reliance on Records of Proceeding to prove service, adding that what is required to prove service is either an Affidavit of Service or Certificate of Service.
Now, ORDER 2 (1) (a) of Court of Appeal Rules 2016 which was the extant Rules of this Court when this cause of action arose, provides thus:
“Every Notice of Appeal shall, subject to the Provisions of Orders 2 Rules 7, 8 and 9, be served personally; 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 personally.”
The pertinent question to ask here is what is the essence of Record of Proceeding or put differently, what is the legal effect of a Record of proceedings? Courts have answered this question in several decided authorities. For instance, the Supreme Court in the case of FAWEHINMI CONS CO LTD VS OAU (1998) 6 NWLR (PART 553) 171 clearly held thus:
“Record of proceedings is the only indication of what took place in Court; it is not like minutes of meeting, it is always the final reference of events, step by step, that took place in Court.”
Also, in the case of AGAGARAGA VS FRN(2007) 2 NWLR (PART 1019) 586 AT 599 PARAS G-E, this Honourable Court had held thus:
“Section 132 of the Evidence Act provides for the bindingness of Record of Proceedings. The Appellate is therefore bound by it and cannot therefore add to or subtract from the Record before it, or guess or conjecture at the contents of the Records of Proceedings…”
The Certified True Copy of Record of the Proceedings of a Court is sacrosanct as it is the final reference of events that took place at the proceedings and same is binding. There is also a laid down procedure to challenge the Record of Proceedings of a Court if a Party has any issues and it can be seen that the Respondent had not done so in this instant Application. Reliance is placed on GAMBO VS DOKA (2016) LPELR-40251 (CA).
Going by the contents of the Exhibit CA1 and Exhibit CA2 which is Certified Extract of the Record of Proceedings of this Honourable Court, and considering the confirmation done by the Panel to be sure that Hearing Notices were served, it shows that this Court was satisfied that the Applicant was duly served before proceeding on with the hearing of the Appeal. It is to be noted that the condition required in the Rules of the Court to confirm service is, whenever the Court is satisfied. This satisfaction can be by any proof, which by today’s practice can be by email message, text message or phone call.
By practice of the ordinary course of activities of this Court, the Panel must have been satisfied by the Court Bailiff’s response, being an Officer of the Court, of due service of the originating or hearing notice before proceeding with the appeal. By Section 167 (c) of the Evidence Act 2011:
“The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that-
(c) The common course of business has been followed in particular cases;”
Furtherance to this, it is also trite that Judicial Acts are presumed to have been properly done, until the contrary is proved. When any judicial or official act shown to have been done in a manner substantially regular, it is presumed that the formal requisites for its validity have been complied with until the contrary is proved. The Latin Maxim puts it succinctly thus, Omnia praesumuntur rite et solemnite esseacta donec probetur in contrarium (all things are presumed to have been legitimately done, until the contrary is proved). Reliance is placed on SUMANYA VS THE NATIONAL PARK SERVICE OF NIGERIA NSCQR VOLUME 47 2011 at PAGE 1. See also SECTION 173 OF THE EVIDENCE ACT.
Again, the Respondent has raised an objection for consideration in its Written Address that this Application was brought outside the fourteen days (14) prescribed by the law. The Respondent submitted that an application seeking to set aside the judgment of this Court must be brought within 14 days after delivery of that judgment based on Order 6 (10) of the Court of Appeal Rules, 2021. In response, the Applicant responded that the applicable law to a case is when the cause of action arose and this appeal was filed at a period when the Court of Appeal Rules 2021 was not in effect.
Yes. This Court is in agreement with the Applicant that the law applicable to a case is the law in effect when the cause of action arose. This contention is validated by the case law authorities of JIDE ALADEJOBI VS NIGERIA BAR ASSOCIATION (2013) NSCQR VOLUME 55 PAGE HOPE DEMOCRATIC PARTY (HDP) VS MR. PETER OBI & ORS (2011) NSCQR VOLUME 48 Page 342; OGBORU & 1 ORS VS UDUAGHAN (2011) NSCQR VOLUME 48 PAGE 560. This cause of action arose the day this Court delivered the judgment the Applicant is seeking to reverse, which is the 30th day of March 2021, so the applicable rule of this Court as at then is Court of Appeal Rules of the year 2016.
This Court has therefore gone through this Court of Appeal Rules of 2016 and reproduced the relevant Order 6 Rule 12 which has to do with this type of Application therein thus:
“An Application to set aside any judgment or ruling shall not be brought unless it is filed within fourteen days of the day of delivery of such judgment or ruling or such longer period as the Court may allow for good cause.”
The simple and clear interpretation of the foregoing Rule 12 of this Honorable Court is that the Applicant has 14 days within which to bring applications of this nature. Alternatively, this 14 days requirement can be extended by this Court whenever considered reasonable, based on the good cause presented by the Applicant.
In the instant case, the judgment sought to be reversed was delivered by this Court 30th March 2021, this Application was filed 29th October 2021, showing clearly that this Application was brought outside 14 days. It is also not on record that the Applicant sought the permission of this Court to extend the prescribed period. No doubt, the Application was not brought in compliance with the Rules of this Court and it is settled that an Application brought without complying with the Statutory Rules of Court is incompetent. See ALHAJI A ALFA ADEHI VS ATULUKU ATEGA & 39 ORS (1995) ELC 1458 SC PAGE 1; GOVERNOR KOGI STATE VS YAKUBU (2001) NSCQLR VOLUME 5 PAGE 598.
Complying with the Rules of Court is a statutory requirement and failure to comply with it will rob the Court of jurisdiction to adjudicate. Appeals generally are creatures of Statutes. Failure to comply with the statutory requirement prescribed by the relevant laws, under which such may be competent and proper before the Court, will deprive such Appellate Court of jurisdiction to adjudicate. Where an action is not properly constituted, the jurisdiction of the Court to adjudicate cannot be invoked. The matter becomes jurisdictional and thus enables the parties to raise the issue of such improper constitution at any stage of the litigation and even for the first time on appeal. It does not matter that the point had been decided at the trial Court against the Party raising it on appeal. Reliance is placed on TIZA & ORS VS IORAKPEN BEGHA (2005) NSCQR VOLUME 22 Page 642 MKREN; DR. AUGUSTINE N. MOZIE VS CHIKE MBAMALU (2005) NSCQR VOLUME 27 Page 425.
There was an added factor that it was the Executive Director of the Appellant that received the DHL Parcel at the address they now challenge as not being their address and flowing from this, there has to be a presumption that service at the address would bring to the notice of the Appellant the fact that an action was proceeding against them.
Based on the foregoing analysis supported by the plethora of case law authorities cited, this Court is constrained to dismiss this Application and uphold its judgment delivered on 30th Day March 2021 as a valid and subsisting judgment of this Court.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading in draft, the lead ruling of my learned brother, Adebukunola A. I. Banjoko, JCA. I am in agreement with the reasoning and conclusion reached therein.
I hereby also dismiss the application and affirm the judgment of this Court delivered on the 30th March, 2021.
I make no order as to costs.
MUHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft, the ruling just delivered by my learned brother, ADEBUKOLA ADEOTI BANJOKO, J.C.A. and I entirely agree with him. The application lacks merit and it is dismissed.
The judgment delivered on 30th March, 2021 remains valid and subsisting judgment of this Court.
Appearances:
Akinyemi Olujimi – for 2nd Respondent/Applicant For Appellant(s)
Valentine Offia For Respondent(s)
