LAMINA v. ARCHIBONG & ORS
(2022)LCN/17015(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, February 10, 2022
CA/A/55/2010
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
1. AISHATU LAMINA (SUED AS THE OCCUPIER OF BLOCK 8 FLAT 7, MALUMF ASHI CLOSE, AREA II, GARKI, ABUJA) APPELANT(S)
And
1. MRS. ARIT ARCHIBONG APPELLANT/CROSS RESPONDENT 2. MINISTER OF THE FCT 3. FCT ADMINISTRATION RESPONDENT(S)
RATIO
WHETHER OR NOT THE SERVICE OF A SUIT ON A DEFENDANT BY WHICH CLAIMS AND RELIEFS ARE SOUGHT AGAINST HIM IS A NECESSARY CONDITION TO THE COMPETENCE OF THE PROCEEDINGS ON THE SUIT
The service of a suit on a defendant by which claims and reliefs are sought against him is a necessary condition to the competence of the proceedings on the suit. It is not only good law but good sense that a person must be made aware of the pendency of a suit against him before a Court may proceed to hear any claim or question against him or touching his interest. Where a person is unaware of a suit or proceedings against him any order or orders made thereby against him are liable to be set aside ex debitio. See Alhaji Taofeek Alao vs. A. C. B. Ltd (2000) LPELR – 408 (SC). PER GAFAI, J.C.A
A party who contends or alleges improper service of Court Process does not demonstrate so by ignoring the process and neglecting or refusing to honour hearing notice served on him by the Court. The proper settled course is to attend and canvass before the Court any disagreement such a party has against the process issued and served on him by the order of the Court. Where a party persistently neglects or refuses to attend the Court after due service of hearing notice(s) on him, he cannot be heard successfully complaining of improper or non-service of Court Process talk less of seeking the tall order setting aside a judgment delivered in his wilful absence. See Odey vs. Alaga (2021) 13 NWLR (Pt. 1792) 1 at 63 paras D-E; First Bank of Nig. Plc vs. T.S.A. Industries Ltd (2015) LPELR-25860; Okon vs. Adigwe (2011) LPELR-4528. PER GAFAI, J.C.A
WHETHER OR NOT THERE MUST BE A PENDING APPEAL BEFORE AN APPLICATION CAN BE BROUGHT TO STAY THE EXECUTION OF JUDGEMENT OF THE LOWER COURT
As referred and quoted by the learned counsel, the decision of this Court in Consolidated Oil vs. Summeroidd (Nig) Ltd (supra) is apt in the circumstance; where this Court held that:
“It is elementary law that there must be an appeal pending in this Court before an application can be brought staying execution the judgment of the lower Court until the determination of an appeal to this Honourable Court. I know that there is an appeal against the ruling of the lower Court delivered on 29/5/95. The Notice of Appeal which contains six grounds. The reliefs sought from the Court are: “An Order setting aside the ruling of the High Court delivered on 29/5/95 and remitting the application filed on 20/4/95 back to the High Court of Delta for determination”. From the foregoing reliefs sought, it is patently clear that the applicant did not appeal against the judgment of the lower Court dated 13/4/95. Having said that, I have no difficulty in holding that … the motion dated 12/2/98 for lower Court dated 13/4/95 is premature and incompetent before this Court as there is no pending appeal in respect of the afore-mentioned judgment to sustain it. With this conclusion of mine, the arguments of other issues in respect of the application for stay of execution become otiose.” PER GAFAI, J.C.A
BATURE ISAH GAFAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory in Suit No. FCT/HC/CV/847/07 delivered on the 5th of November, 2009 coram Garba, J. (as he then was). Earlier on the 14th of May, 2009, the 1st Respondent then as the Plaintiff, had obtained a judgment of the Court by which the Appellant, then as the 3rd Defendant, was ordered to vacate the property known as Block 8, Flat 7, Malumfashi Close, Area 11 Garki Abuja. The Appellant was aggrieved with the decision and thus applied to the trial Court vide her motion as notice filed on the 28th of May, 2009 seeking in the main for orders setting aside the judgment and, as the Appellant further prayed, staying its execution. After hearing both sides on the motion, the trial Court in its Ruling delivered on the 5th of November, 2009, dismissed the Appellant’s motion for lacking in merit. It is this ruling in particular that is the subject of this appeal. In other words, it is not an appeal against the Judgment in the suit but one against its ruling dismissing the Appellant’s post-judgment motion seeking to set aside the judgment. In her Notice of Appeal dated and filed on the 6th of November, 2009, the Appellant questioned the trial Court’s ruling on four grounds thus:
“GROUND ONE
The learned trial Judge of the FCT Court erred in law when he held “This Court is of the considered view that the occupier of Block 8, Flat 7, Malumfashi Close, Area II, Garki, Abuja was properly served with the processes of this Court” referring to the Motion on Notice to Amend Statement of dated 22nd May, 2008.
GROUND TWO
The learned trial Judge of the FCT High Court erred in law by not taking into consideration decided authorities and the provisions of Order 10 Rule 16 of FCT High Court Civil Procedure Rules 2004 (as to service of Writ of Summons on a new Defendant in a suit) and went ahead to hold that the service of a Motion on Notice and Hearing Notice was sufficient service on a new defendant in a suit.
GROUND THREE
The learned trial Judge of the FCT High Court erred in law when he refused to grant the application to set aside the judgment of Court delivered on the 14th of May, 2009 despite the Appellant’s contention that she was not served the Writ of Summons after being joined as a new Defendant in the suit and thereby robbing her of the opportunity to present her case.
GROUND FOUR
The learned trial Judge of the FCT High Court erred in law when refused to grant an order for stay of execution in view of the application to set aside the judgment of the Court.”
The respective particulars enumerated under these grounds are noted. See pages 189 to 191 of the Record of Appeal. This record together with a Supplementary Record of Appeal were deemed properly transmitted to the Court on the 7th of November, 2016.
In the Appellant’s Brief of Argument filed on the 23rd of July, 2010 but deemed properly filed and served on the 7th of November, 2016, two issues for determination in this appeal are formulated thus:
“i. Whether non-compliance with Order 10 Rule 16 of the FCT High Court Civil Procedure Rules is sufficient in law to vitiate a proceedings, warranting the judgment delivered in same to be set aside.
ii. Whether or not a Court can grant an order for stay of execution without a pending appeal, in view of an application to set aside the judgment of the Court in the same suit.”
The 1st Respondent’s Brief of Argument was filed on the 6th of October, 2010 but deemed properly filed and served on the 7th of November, 2016 in which three issues for determination are formulated thus:
a. Whether non-compliance with Order 10 Rule 16 of the FCT High Court (Civil Procedure) Rules, 2004, in view of service of the 1st Respondent’s Amended Statement of Claim following the joinder of the Appellant and as well as hearing notices on the Appellant, is sufficient to vitiate and nullify the proceedings of the trial Court. (Ground 1).
b. Whether a Court can grant an Order for stay of execution without a pending appeal despite an application to set aside the judgment of the Court in this same suit. (Ground 4).
c. Whether the Court of Appeal can set aside the judgment of the trial Court where there is no appeal filed against same. (Ground 3 & 4).”
Neither 2nd nor the 3rd Respondent has filed a Brief of Argument but they have jointly filed a Notice of Cross-Appeal on the 14th of August, 2018 simultaneously with their joint Brief of Argument on same which was deemed properly filed and served on the 25th of September, 2018. I should mention here that the same two issues for determination formulated by the Appellant (supra) are also exactly the same Issues formulated by the 2nd and 3rd Respondents/Cross-Appellants. The arguments and submissions in both are the same. Indeed, the main thrust of Appellant’s entire Brief of Argument as condensed at its pages 14 to 15 paragraphs 6.0 to 6.2 are also exactly the same word by word with those at pages 13 to 14 paragraphs 5.0 to 5.2 of the 2nd and 3rd Cross-Appellants’ brief. The Cross-Appellants have embarked on a very risky adventure here because a Cross-Appellant is not allowed to raise and argue the same issues in the same manner as already done in the main appeal as the resolutions on the issues in the main appeal will automatically bind the Cross-Appellant although the Cross-Appeal is a distinct, separate Appeal and not an appendage of the main Appeal. See Engr, Albert Ejiro vs. Andrew Dio Ochai & Ors (2021) LPELR 54190; Aderounmu vs Olowu (2000) LPELR- 141.
Naturally, the Appellant did not join issues with the Cross-Appellant by way of brief or howsoever. Curiously, the 1st Respondent too has ignored the Cross-Appellant’s brief in the same way the Cross-Appellants ignored the Appellant’s and the 1st Respondent’s briefs.
As reproduced earlier, the Appellant’s complaints in her four Grounds of Appeal herein are all in respect of the trial Court’s post-judgment decision in its ruling of the 5th of November, 2009 wherein it dismissed the Appellant’s motion seeking to set aside its earlier judgment against the Appellant in the substantive suit on the ground of non-service of the originating processes on her. This is what the Appellant’s first issue for determination (supra) is all about. Sadly, in the entire arguments under this issue at pages 4 to 13 of the Appellant’s brief, there is no reference or pointer or indication to the particular ground or grounds of appeal from which the issue is distilled. Since however the issue is directly related to the Appellant’s entire appeal as shown in grounds one to three of the Notice of Appeal, and in order to avoid technical success or failure of the Appeal, this Court will proceed to resolve the Appellant’s first issue (supra) in the context of her said three Grounds of Appeal.
I find the Appellant’s arguments under her first issue quite lucid and straight forward and will therefore not summarize but reproduce their main here thus:
“3.2 The Appellant’s main contention is that she was not served the originating processes in the suit after she was joined as a new Defendant in the suit. Upon obtaining an order on the 22nd November 2008 to join the Occupier of Block 8, Flat 7, Malunfashi Close, Area II, Garki, Abuja (i.e. the Appellant) as a Defendant in the suit, the 1st Respondent served the Appellant’s Motion on Notice to Amend her Statement of Claim, dated 3rd April, 2008 and filed on the 3rd April, 2008 and one Hearing Notice. This much is contained in the records of the lower Court and was also acknowledged by the Judge on page 4 of his judgment (Page 179 of the Record of Appeal), wherein he stated that the Appellant, (3rd Defendant) was served a Motion on Notice dated 3/04/08 and filed on 7/04/08 and also a Hearing Notice dated 21/5/08. The Court further held on the same page that the 3rd Defendant (Appellant) ‘was properly served but chose not to defend the action for reasons best known to her’.
3.3.1 The Counsel to the 1st Respondent in his response to the Appellant’s application to set aside the judgment further admitted on page 56 of the Record of Appeal that the Appellant was served the Motion on Notice to Amend the Statement of Claim and Hearing Notice. It is therefore not in contention that the Appellant was only served Motion on Notice to Amend 1st Respondent’s Statement of Claim and a Hearing Notice.
3.4 We draw the Court’s attention to the provisions of Order 10 Rule 16 the FCT High Court Civil Procedure Rules 2004 which provides as follows:
“Where a defendant is added or substituted, the Writ of Summons shall be amended accordingly and the Plaintiff shall unless ordered by the Court in Chambers, file an amended Writ and cause the new defendant to be served in the same manner as original defendants are served and the proceedings shall be continued as if the new defendant had originally been made a defendant (Underling mine).”
3.3 It would seem from the underlined portions of the said order, that the 1st Respondent had two duties to discharge as pertains to the Appellant who was joined as a new Defendant in the suit.
i. To amend the Writ of Summons to reflect the newly joined party or Defendant.
ii. To serve the new defendant in the same manner as original defendants are served.
3.4 The next question that would arise from the last provision would be: How is service effected on the new defendants in a Suit? The answer to this is provided for in Order 11 Rule 2 of the FCT High Court Civil Procedure Rules which provides as follows:
“Subject to these rules, an originating process shall be served personally by delivering to the person to be served a copy of the document, duly certified by the Registrar as being a true copy of the original process filed. (Underlining mine)
It is clear then that it is originating processes that should have been served personally on the newly joined Defendant and not just a Motion on Notice and Hearing Notice. The term “originating process” was referred to as original process in Black’s Law Dictionary and defined as any Writ or Notice by which a defendant is called upon to appear and answer the Plaintiff’s declaration (Black’s Law Dictionary 7th Edition Page 1222). In the Court’s Ruling of 5th November 2009 contained on page 99 of the Supplementary Record of Appeal, the Court adopted Black’s Law Dictionary definition of process which also signifies Writs or Judicial means by which he (the Defendant) is brought (into Court) to answer. It is from the originating processes (which consists of the Writ Summons, Statement of Claim, Witness Statement on Oath) that a Defendant gets to know the full details of the claims against him and not from a Motion on Notice to amend Statement of Claim or a Hearing Notice.”
The learned counsel for the Appellant Dubem Anene (Mrs.) Esq., proceeded to refer to judicial authorities which include Kida vs. Ogunmola (2006) 8 MJSC 1 @ 5; Mark vs. Eke (2004) All FWLR (Pt 200) 1455 2 paras. H – C; API Ltd vs NDIC (2006) MJSC 70 to support her arguments by which she submitted altogether that the learned trial Judge erred in refusing to set aside his judgment as sought in the Appellant’s Motion and holding instead that the Appellant was properly served with the necessary process in the suit and that the trial Court’s failure to comply with the provisions of Order 10 Rule 16 of the FCT High Court (Civil Procedure) Rules is sufficient to vitiate the entire proceedings.
On the Appellant’s second issue (supra) which, just like her first issue, is not indicated to have been distilled from any particular Ground of Appeal but which appears related to the Appellant’s ground 4 (supra), this Court will proceed to resolve same accordingly in the interest of justice. The arguments under this issue are quite short; the gist of which is that the trial Court erred in law when it refused to grant the Appellant’s prayer for a stay of execution on the ground that the Appellant did not appeal against the judgment whose execution is sought to be stayed. On both issues, the Appellant seeks from this Court an order setting aside the substantive judgment of the trial Court delivered on the 14th of May, 2009. See paragraph 4(b) of the Appellant’s Notice of Appeal at page 191 of the Record and paragraph 6.2 at page 15 of her Brief. These are not the only but the main arguments and submissions for the Appellant in this appeal.
The three issues presented by the 1st Respondent have been reproduced earlier herein. As can be recalled, the 1st Respondent’s first and second issues are the same with those formulated by the Appellant. In arguing the first issue, the learned counsel for the 1st Respondent Daniel E. Osiagor Esq., posited in equal degree of lucidity as his learned friend for the Appellant thus:
“3.2 The Appellant was joined as the 3rd defendant at the trial Court. Following the joinder, the 1st Respondent amended her statement of claim to incorporate the name of the Appellant in the suit and also reliefs against the Appellant and 2nd and 3rd Respondents. The Amended Statement of Claim and Motion-on-Notice wherein the Amended Statement of Claim was attached were served on the Appellant and on the 2nd and 3rd Respondents. The said 1st Respondent’s Motion-on-Notice contained and prayed a deeming order deeming as properly filed and served the Amended Statement Claim which was duly granted by the trial Court.
3.3 Aside the Amended Statement of Claim and the Motion-on-Notice, the appellant was equally served with hearing notices as to the dates the matter came for hearing. The appellant was also served with the 1st Respondent’s Written Final Address. Despite the afore-mentioned services, the Appellant chose not and elected not to appear and defend the suit against her at the trial Court. (Contained in the Records of Appeal particularly at page 166).
3.4 With the service of the Amended Statement of Claim, the Motion-on Notice and hearing notices, it is our humble submission that the Appellant was properly served with the processes of the trial Court.
3.5 IN CHIEF J. O. LAHAN VS. CHIEF LAJOYETAN (1972) 6. S.C. 190, the Supreme Court held that averments and particulars in the Statement of Claim supercede the particulars of claim endorsed in the Writ of Summons.
3.5.1 May I further commend to my Lords the case of ONYERO VS. NWADIKE (1996) 9 NWLR PT. 471 PG 231 wherein the Court of Appeal held that it is a well settled law that a Statement of Claim when filed supercedes the Writ of Summons.
3.6 Based on the premise of the foregoing legal authorities, it is our humble “view that the 1st Respondent’s amended statement of claim filed and as well as the Motion-on-Notice and the hearing notices served on the Appellant in law constitute sufficient notice of the action pending against her.
3.7 The Appellant, in her brief, submitted that she was not accorded fair hearing at the trial Court simply because she was not served an amended writ of summons. In response, we humbly contend that the Appellant neglected to attend the sitting of the Court as she was duly served with the Amended Statement of Claim, Motion-on-Notice and hearing notices. (See page 166 of the Record of Appeal). Despite these notices, the Appellant did not deem it fit nor show any little respect to the trial Court to appear before the Court so as to know the case against her.
3.8 The Appellant, having knowledge of the case against her, did not deem it fit to file anything challenging the competence of the suit and just folded her arms till judgment was given at the trial Court.
3.8 IN BARR, MIKE NKWOCHA & ORS VS MTN NIGERIA LTD & ANOR (2008) 11 NWLR PT. 1099 PG 439 AT 444, it was held that where a party to a suit has been accorded reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation he fails or neglects to attend the sitting of the Court, he cannot thereafter be heard to complain of lack of fair hearing.
3.9 We further submit that the Appellant’s neglect or refusal to attend the sitting of the Court despite numerous Court processes served on her is tantamount to a waiver her right.”
“4.0 …It is our contention that the non-compliance with Order 10 Rule 16 of the FCT High Court (Civil Procedure) Rules, 2004, in view of service of the 1st Respondent’s Amended Statement of Claim following the joinder of the Appellant and as well as hearing notices on the appellant, is not sufficient to vitiate and nullify the proceedings of the trial Court and we humbly urge this Honourable Court to so hold.
4.1 We further contend that the Appellant has failed to show how non-service the Amended Writ of Summons has affected and occasioned a miscarriage of justice. Afterall, before judgment of the trial Court was delivered, she was aware of the suit against her by the service of the Amended Statement of Claim, Motion-on-Notice, hearing notices and other processes of the trial Court. Moreso, the appellant never showed or contended that she was not aware of the suit at the trial Court.
4.2 The essence, we humbly submit, of the service of Court process is to put the other on notice that a case has been made against such one. An option left for such party served with such process is to appear before the Court either conditionally or unconditionally as a mark of respect or necessity.”
Learned counsel referred to the judicial authorities on these submissions in Barrister Mike Nkwocha & Ors vs. MTN Nig. Ltd & Anor (2008) 11 NWLR (Pt. 1099) 439 at 444; Lahan vs. Lajoyetan (1972) 6 SC. 190; Onyero vs. Nwadike (1996) 9 NWLR (Pt. 471), 231 among others.
On the second issue, learned counsel argued that there being no appeal against the judgment of the trial Court, the Appellant cannot seek from the trial Court an order of stay of execution of the judgment. He referred to the decision of this Court in Consolidated Oil Ltd vs. Sumeroidd (Nig) Ltd (1998) 8 NWLR (Pt. 561) 184 at 191-192 which he quoted in extensio where it was held that there must first be an appeal in this Court before an application seeking for a stay of execution can be validly brought.
The 1st Respondent’s short arguments under her third issue (supra) are mainly that the Appellant having not appealed against the judgment of the trial Court, can not be heard seeking for an order setting aside the Judgment, placing reliance on the decision of this Court in Ikechukwu Martin Anah vs. Senator N.N. Anah (SAN) (2008) 9 NWLR (Pt. 1091), 75 at 79. On the whole, the 1st Respondent seeks that this appeal be dismissed with substantial cost and judgment of the trial Court upheld.
Let me reiterate once more that this appeal in its entire grounds and the totality of the arguments and submissions in both briefs on it is basically on whether the trial Court was right in its Ruling of the 5th of November, 2009 when it refused to grant the Appellant’s prayers for orders setting aside its judgment and for a stay of execution of same. The appeal is not on whether any aspect of the judgment itself is right or wrong although the underlying ultimate target of appeal is against the judgment.
The biggest complaint of the Appellant as demonstrated by the particulars stated under her first to third Grounds of Appeal is that she was not served with the originating process in the suit against her at the trial. The service of a suit on a defendant by which claims and reliefs are sought against him is a necessary condition to the competence of the proceedings on the suit. It is not only good law but good sense that a person must be made aware of the pendency of a suit against him before a Court may proceed to hear any claim or question against him or touching his interest. Where a person is unaware of a suit or proceedings against him any order or orders made thereby against him are liable to be set aside ex debitio. See Alhaji Taofeek Alao vs. A. C. B. Ltd (2000) LPELR – 408 (SC).
I have taken the pains to study carefully the entire proceedings of the trial Court from the date the Appellant was joined as a party in the suit on the 2nd of January, 2008. When the matter came up for hearing on the 6th of March, 2008, the trial Court was informed by the 1st Respondent’s counsel that the Appellant had been evading service of the Suit. It was not until the 22nd of May, 2008 that Appellant was personally served with the Court Process. See pages 149 -150 of the Record and page 99 of the Supplementary Record. In particular, at pages 97 – 98 of the latter record, the trial Court observed in its Ruling thus:
“However, in the instant case, this Court made an order to join the occupier of Block 8, Flat 7, Malumfashi Close, Area II, Garki, Abuja on 22/1/2008, as a result of which the judgment creditor/respondent brought a motion to amend the statement of claim and deeming it as properly filed and served, the necessary fees having been paid.
From the record of this Court, the said amended statement of claim and a hearing notice was served personally on the occupier of Block 8, Flat 7 Malumfashi Close, Area II, Garki, Abuja one Aishatu Lamina on 22/05/08 which name correspond with Exhibits A, B, C, E and F attached to the Applicant’s affidavit to this application. A cursory look at the application before this Court, the Applicant is one Amina Lamina and not Aishatu Lamina who is the occupier of the said flat in question (the subject matter).”
It is noteworthy also that in the judgment that is now sought to be set aside on ground of non-service of the suit on the Appellant, the trial Court noted comprehensively on the Appellant’s claim of non-service thus:
“It is instructive to point out that this stage that the 3rd Defendant was joined in the suit on 22/11/2008. The processes of this Court was served on her on the 22/2/08 by one Musa Mathew Tyem, a bailiff of this Court on 22/5/06, the 3rd Defendant acknowledged service of Motion on Notice dated 3/04/08 and 7/04/08 and also a hearing notice dated 21/05/08. The said processes were endorsed by one Aishatu Lamina of Flat 7 Block 8, Malumfashi Close Area II, Garki. The 3rd Defendant did not file any processes in this matter inspite of having being served with the processes of this Court.
In view of the above, it is the opinion of this Court that the 3rd Defendant has been properly served but chose not to defend this action for reason best known to him or to her.”
See page 166 of the Record.
Two established crucial facts arising from these twin decisions of the trial Court are firstly that the Appellant was served with the 1st Respondent’s Amended Statement of Claim under which the entire suit and the judgment on it ensued and secondly, the Appellant simply ignored the process served on her and neglected to attend the Court sitting on it despite service of hearing notices on her. A party who contends or alleges improper service of Court Process does not demonstrate so by ignoring the process and neglecting or refusing to honour hearing notice served on him by the Court. The proper settled course is to attend and canvass before the Court any disagreement such a party has against the process issued and served on him by the order of the Court. Where a party persistently neglects or refuses to attend the Court after due service of hearing notice(s) on him, he cannot be heard successfully complaining of improper or non-service of Court Process talk less of seeking the tall order setting aside a judgment delivered in his wilful absence. See Odey vs. Alaga (2021) 13 NWLR (Pt. 1792) 1 at 63 paras D-E; First Bank of Nig. Plc vs. T.S.A. Industries Ltd (2015) LPELR-25860; Okon vs. Adigwe (2011) LPELR-4528.
If the Appellant’s complaint is truly that she was not served with any process previously filed before she was joined as a party, nothing stops her learned counsel from demanding for same in open Court or in writing to the Registrar of the Court. It is happening every day in all the Courts. The Appellant did neither in the same way she ignored the hearing notices duly served on her. The Appellant’s contention that she was not served with the 1st Respondent’s amended writ of summons in accordance with the provisions of Order 10 Rule 16 of the FCT High Court (Civil Procedure) Rules 2004 is one that is clearly incorrect. Once again, recall the observation and decision of the learned trial Judge in his ruling at pages 97 to 98 of Supplementary Record (supra) both of which leave no one in any doubt that the Appellant was duly served personally with the 1st Respondent’s amended writ of summons, statement of claim etc. As the learned trial Judge reasoned, which I agree with, “… the 3rd Defendant has been properly served but chose not to defend this action for reason best known to him or to her” (supra). In consequence, the respective similar first issues for determination formulated and argued by both the Appellant and the 1st Respondent are resolved in favour of the 1st Respondent.
As reproduced earlier, the respective second issue for determination for both the Appellant and the 1st Respondent are also exactly the same, although naturally argued on different lines. Here, the issue for both is on whether the Court can or should grant an order for stay of execution without a pending appeal despite an application before the same Court seeking to set aside the judgment sought to be stayed.
This issue is related to the Appellant’s ground 4 of her Notice of Appeal (supra). The short arguments canvassed for both parties have been summerised earlier here.
To begin with, there is till date no appeal by the Appellant or any of the Defendants/Respondents against the judgment whose execution is now sought to be stayed. This is not a point of argument. In such a situation, one wonders what exactly is the purpose meant to be served by an order of stay of execution. To stay execution pending what or which event? It will be anomalous to suggest that the order is sought pending the hearing of the Appellant’s prayer seeking to set aside the judgment because both prayers were presented to the trial Court on the same motion, meant to be and were indeed heard simultaneously. The appeal against the ruling of trial Court refusing to grant the Appellant’s prayer seeking to set aside its judgment is not an appeal against the Judgment itself. This is reinforced by the Appellant’s Grounds of Appeal which altogether did not raise a single appealable complaint against the judgment. I am in agreement with the submission of the 1st Respondent’s learned counsel that there must be a pending appeal against a judgment before an applicant can seek for its stay of execution. As referred and quoted by the learned counsel, the decision of this Court in Consolidated Oil vs. Summeroidd (Nig) Ltd (supra) is apt in the circumstance; where this Court held that:
“It is elementary law that there must be an appeal pending in this Court before an application can be brought staying execution the judgment of the lower Court until the determination of an appeal to this Honourable Court. I know that there is an appeal against the ruling of the lower Court delivered on 29/5/95. The Notice of Appeal which contains six grounds. The reliefs sought from the Court are: “An Order setting aside the ruling of the High Court delivered on 29/5/95 and remitting the application filed on 20/4/95 back to the High Court of Delta for determination”. From the foregoing reliefs sought, it is patently clear that the applicant did not appeal against the judgment of the lower Court dated 13/4/95. Having said that, I have no difficulty in holding that … the motion dated 12/2/98 for lower Court dated 13/4/95 is premature and incompetent before this Court as there is no pending appeal in respect of the afore-mentioned judgment to sustain it. With this conclusion of mine, the arguments of other issues in respect of the application for stay of execution become otiose.”
Furthermore, in seeking for the order of stay of execution, the Appellant is basically relying on the same ground of alleged non-service of the originating process on her which the trial Court has severally discountenanced. Having refused the Appellant’s main prayer seeking to set aside its judgment, it would be ridiculous for the same Court to grant in the same breath the Applicant’s prayer seeking for a stay of execution, more particularly as both prayers are rooted in the same ground.
The argument of the learned counsel that the case at hand is an exception does not find any place in law or in the rules of the trial Court and this Court nor is any referred by the learned counsel.
I think the Appellant should have been more concerned with the finding and decision of the trial Court on the competence of the Appellant’s motion when it held in its ruling on the motion thus:
“A cursory look at the application before this Court, the Applicant is one Amina Lamina and not Aishatu Lamina who is the occupier of the said flat in question (the subject matter). This Court is of the considered view that the proper party (Applicant) is not before this Court. Therefore Amina lamina has no locus standi in this application. It is trite that the term locus standi denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like “standing” or “title to sue”, is as fatal to an action as in failure to disclose any reasonable cause of action. See NBC v EZIEFO (2001) VOL. 28 WRN Pg 148 at 158-159.” See page 98 of the Supplementary Record.
In any case, this issue too is resolved in favour of the 1st Respondent. On the whole, this appeal is dismissed for want of merit. The ruling of the trial Court delivered on the 5th of November, 2009 in suit no. FCT/HC/CV/847/07 is affirmed. Cost of N200,000 is awarded to the 1st Respondent against the Appellant.
CROSS-APPEAL
As explained earlier, the 2nd and 3rd Respondents chose not to respond to the Appellant’s appeal but brought a cross-appeal instead. As stated earlier also, the Notice of cross-appeal contains the same grounds and particulars as those in the main appeal. The arguments and submissions are the same. To demonstrate their similarity, the grounds of the notice of cross-appeal are reproduced here thus:
“GROUND ONE
MISDIRECTION
The learned trial Judge misdirected himself when he held that “from the record, this Court the said amended statement of claim and a hearing notice was served personally on the occupier of Block 8, Flat 7, Closes, Area II, Garki, Abuja, one Aishatu lamina on 22/05/08 which name correspond with A, B, C, E and F attached to the Applicant’s affidavit to this application”
GROUND TWO
ERROR IN LAW
The learned trial Judge erred in law when he refused to set aside its ruling delivered on 14th May, 2009 having been delivered without giving fair hearing to the Appellant as she was not served with originating processes.
GROUND THREE
ERROR IN LAW
The learned trial Judge erred in law when he refused to grant an order setting aside its judgment that is sought to be set aside is being challenged on grounds of lack jurisdiction.” It may be recalled that I had earlier cautioned that the outcome of this cross-appeal in the manner it is presented cannot be any different from that in the main appeal owing to their similarity. Inevitably therefore, this cross-appeal fails for the same reasons the main appeal failed. The cross-appeal is dismissed for lacking in merit. The ruling delivered by the trial Court on the 5th of November, 2009 in Suit No. FCT/HC/CV/847/07 is hereby affirmed. Cost of N200,000.00 is awarded against the 2nd and 3rd Respondents jointly.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance the draft judgment of my learned brother, BATURE ISAH GAFAI, JCA.
I also agree with his findings, reasoning and conclusion as contained therein in the lead judgment of my learned brother.
ABBA BELLO MOHAMMED, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother, Bature Isah Gafai, JCA.
As a principle of natural justice which is enshrined in our Constitution, the right to fair hearing only demands the grant of opportunity for the exercise of that right. The choice is then left for the person to whom such opportunity is granted to utilize the opportunity and exercise his right to be heard or stay away and forgo same. Once he is given the opportunity to be heard and he chooses to stay away, he cannot be heard to complain of lack of fair hearing. See MILITARY GOVERNOR OF LAGOS STATE & ORS v ADEYIGA & ORS (2012) LPELR-7836(SC), per Onnoghen, JSC (as he then was) at pages 51 – 52, paras. F- F; JOEL OKUNRINBOYE EXPORT CO. LTD. & ORS v SKYE BANK PLC (2009) LPELR-1618(SC), per Mohammed, JSC (as he then was) at page 27, para. A.
In the instant appeal, the Appellant had sought to set aside the judgment of the trial Court on the complaint that she was not served with the originating process after she was joined as a party to the suit as required by Order 10 Rule 16 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004. However as found by the trial Court at pages 97 – 98 of the Record of Appeal, the Appellant was duly personally served with an Amended Statement of Claim as well as a hearing notice on the 22nd of May, 2008 after she was joined as the 3rd Defendant in the suit, but the Appellant refused to attend Court. She chose to stay away until after judgment was given in the suit. Having willfully stayed away from the suit after she was served with the originating processes as well as hearing notice, the Appellant cannot validly complain of lack of fair hearing since she was duly granted the opportunity of being heard.
As for the Appellant’s second compliant over the refusal of the trial Court to grant a stay of execution of the judgment on the ground that there was no appeal against the judgment but only an appeal against its ruling refusing to set aside the judgment, it is settled that for there to be valid application for stay of execution of a judgment, there must be a challenge to the judgment whose execution is sought to be stayed. See INTERCONTRACTORS (NIG.) LTD v UAC OF NIGERIA LTD (1988) LPELR- 1521(SC), per Karibi-Whvte, JSC at pages 34 – 37, para. E.
In the instant appeal, even though the Appellant did not appeal against the judgment of the trial Court, this appeal, on which he grounded his application to the trial Court for stay, is against the ruling of the trial Court refusing to set aside the judgment. It is trite that a party who is dissatisfied with the judgment of a Court has the two options of either applying to set aside the judgment, or to appeal against the judgment. In the first option, the party’s essential contends that as a matter of law the judgment does not exist due to lack of jurisdiction on the part of the Court and seeks that same should be judicially pronounced null and void. In the second option, the party concedes to the validity of the judgment but resorts to the appellate review procedure, contending that on some legal or factual grounds, or a combination of both, the decision of the lower Court was wrong. The point to appreciate however, is that both situations constitute a challenge to the judgment of the Court, the only difference being that while the first seeks to obliterate the judgment, the second seeks to abrogate it. See SKYE BANK PLC v DAVID & ORS (2016) LPELR-41548(CA), per Wambai, JCA at pages 18 – 19, para. B and NIGERIA BREWERIES PLC v DUMUJE & ANOR (2015) LPELR-25583(CA), per Ogakwu, JCA at pages 16 – 25, para. F.
Indeed, as observed in the latter case of NIGERIA BREWERIES PLC v DUMUJE & ANOR (supra), Order II Rule 14 of the Judgment Enforcement Rules appears to accommodate both appeal against the judgment and appeal against a decision refusing the set aside the judgment as being proceedings upon which an application for stay of execution can be validly grounded.
Flowing from the settled position as stated above, it is clear that the trial Court was wrong to have held that the Appellant’s application for stay of execution was incompetent because it was not grounded upon an appeal against the judgment of the Court but an appeal against its ruling refusing to set aside the judgment.
It is pertinent to observe however, that the said application for stay made by the Appellant before the lower Court was pending the outcome of this appeal which was then pending before this Court. With the lead judgment just delivered which has dismissed the appeal for lack of merit, to which decision I am also in full agreement, that decision of the trial Court refusing to grant a stay has become spent.
On the whole, for the above and the more elaborate reasons stated in the lead judgment, I also find no merit in this appeal and accordingly dismiss same and affirm the decision of the trial Court delivered on the 5th of November, 2009.
Appearances:
DUBEM ANENE (MRS.), ESQ. For Appellant(s)
DANIEL E. OSIAGOR, ESQ. – for 1st Respondent
DR. JAMES E. AGBONHESE, ESQ. – for 2nd and 3rd Respondents For Respondent(s)
