MR. ADISA-ADEOGUN & ANOR v. DR. ADETUNJI OLUKAYODE AKINYEMI (2014)

MR. ADISA-ADEOGUN & ANOR v. DR. ADETUNJI OLUKAYODE AKINYEMI

(2014)LCN/6819(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of February, 2014

CA/L/578/2006

RATIO

IMPORTANCE OF A FAILURE TO SERVE A COURT PROCESS ON A PARTY

Service of process on a party to a proceeding is crucial and fundamental, See: AUTO IMPORT EXPORT v. ADEBAYO (2002) 18 NWLR (PART 799). Failure to serve process where service is required is a fundamental vice, it deprives the trial court of necessary competence and jurisdiction to hear a suit, See: UBA V. OKONKWO (2004) 5 NWLR (PART 867) 44. Per JOSEPH SHAGBAOR IKYEGH, J.C.A.

WHETHER AN ORDER FOR POSSESSION CAN BE MADE ON AN EX PARTE APPLICATION

“I think the learned Justice is right in the two passages above. I should myself think that an ex parte motion is inappropriate where the interests of the other party will be adversely affected except in a case of extreme urgency and for a limited period only. Justice demands that both sides are heard or given an opportunity to be heard before an order adversely affecting the rights and obligation of one of them is made. This is in accord with the provisions of the Constitution. Natural justice also demands it. I am impressed by the reasoning of their Lordships of the court below in Bayero and I have no hesitation in agreeing with them and adopting the statement of law pronounced by them. And it is very gallant and honourable of learned counsel, Mr. ‘Gafar that he readily and candidly accepted the soundness of the decision in Bayero even though it is against the interest of his client, the 2nd respondent. I hold that the appellant was entitled to be put on notice of motion brought by the judgment creditor to attach and sell her immovable property.

……………..

Neither the judgment debtor (appellant) nor any of those then living in the house was put on notice. I cannot fathom under what law or rule of court the learned Chief Judge proceeded in this matter. One would think that the proper course would be for the purchaser to sue for possession and join all those in possession as defendants. The order for possession made by the Chief Judge on 4/2/97 was clearly a nullity. What was done was not a mere irregularity but a fundamental defect which went to the root of the competence of the court. It is strange indeed that the court below found nothing wrong in the order for possession made on an application ex-parte and in the circumstance that an application to set aside the sale was, at the time of the order, pending. I think the whole procedure was riddled with irregularities and nullities that it would amount to a travesty of Justice to uphold the order made in such circumstance.”

See also Bamaiyi v. State (2001) 8 NWLR (Pt.715) 270, Eke v. Military Administrator Imo State (2007) 13 NWLR (Pt.1052) 531 at 561 and 564, Oduola v. Nabhan and Ors. (1981) 12 N.S.C.C. 180 at 208, Enabirhire v. Atamabo (1967) NMLR 253 at 257. Per JOSEPH SHAGBAOR IKYEGH, J.C.A.

JUSTICES:

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

1. MR. ADISA-ADEOGUN
2. MRS. MODUPE ODERINDE
(Substituted for MRS. AJOKE ADISA ADEOGUN By order of Court dated 7/3/13) – Appellant(s)

AND

DR. ADETUNJI OLUKAYODE AKINYEMI – Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A.(Delivering the Leading Judgment): The appeal is against a Ruling made by the High Court of Justice of Lagos State (the court below) entering an order of possession of a parcel of land in favour of the respondent.

Briefly stated, according to the respondent, the husband of the appellant, a Mr. Adisa Adeogun (now the 1st appellant) who said he derived title to the disputed piece of land from a Chief Arowolo was noticed building on the land; the respondent discovered the development of the land and brought a motion for the husband of the appellant to be joined in the suit as 2nd defendant which was successfully opposed by the appellant’s husband leading to the dismissal of the application for joinder; that during the pendency of the suit the appellant’s husband split the parcel of land between himself and the appellant and both obtained two separate certificates of occupancy covering the respective portions of land dated 15.5.95 and 20.6.95 respectively; which was done for the purpose of deceiving the court below that there exist two separate and distinct portions of land; that there had been a subsisting judgment of the High Court of Justice Lagos State (Olorunimbe, J.) delivered on 23.3.98 in favour of the respondent against a Chief Jimoh Arowolo in a representative capacity in suit No.ID/339/98 in which the respondent was declared entitled to a statutory right of occupancy over the piece of land with N5,000.00 general damages in favour of the respondent against Chief Jimoh Arowolo as well as a permanent injunction restraining Chief Arowolo by himself his servants, agents and privies from committing further acts of trespass in the said land; that neither Chief Arowolo nor Mr. Adisa Adeogun, the appellant’s husband, nor the appellant appealed against the judgment given by Olorunimbe in Suit No.ID/339/88; that the respondent by motion dated 6.6.2003 moved the court below to grant a consequential order of possession of the said parcel of land to him which was served on Chief Jimoh Arowolo before the motion was moved and granted by the court below on 19.4.2004; and that paragraph 2.02 and 2.03 of the statement of facts of the Appellant Amended brief of argument to the effect that the appellant was not served the motion for an order of possession of the land was, according to the respondent false.

However, the appellants maintained on the other hand that the motion for order of possession was ex parte and was heard as an ex parte application by the court below which granted it, and that they were not served the said motion ex parte.

It is against the order granting possession to the respondent that the appellants brought the present appeal which is now fought by the two appellants on record who replaced the original appellant upon her death.

The appellant was aggrieved with the decision of the court below and filed an appeal against it. The notice of appeal was later amended by order of the court. The amended notice of appeal filed on 14.3.13 contains two grounds of appeal. In an amended brief of argument filed on 14.3.13 the appellants distilled these issues for determination –

“ISSUES FOR DETERMINATION

3.1. Whether the trial judge was right in granting the Respondent’s exparte application for possession without requiring that the Appellant be put on notice.

3.2. Whether the trial judge was right to entertain the exparte application for possession of property in the physical possession of the Appellant and grant the order sought (order dated 19th April, 2004) when the main action was brought to establish title only without a claim for possession having been made prior to judgment.”

The appellants argued that there was no substantive relief for possession in the earlier suit No.ID/339/88 and that the said relief was introduced after judgment was delivered in that suit but the court below, nevertheless ordered that the respondent recover possession without putting the appellants who were in physical possession of the parcel of land on notice to challenge the application if they so desired, in virtue of section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as altered, (1999 Constitution) read with the case of Oduola and Ors v. Nabhan and Ors. (1981) 12 NSCC 180 at 208; that an application in respect of recovery of possession of land cannot be granted on ex parte motion, as to do so would affect the principle of natural justice vide Enabirhire v. Atamabo (1967) NMLR 253 at 257; that the decision of the court below being a nullity, nothing can be placed on it vide Oyebimpe Apinke and Ors v. Adesanwo (1962) WNLR 339 at 342, Macfoy v. UAC Ltd. (1961) 2 WLR 1405; and that in Enabirhire (supra) it was a stranger who was not a party in the suit but was in occupation of the disputed piece of land that was not put on notice of the application for recovery of possession, yet it was held in that case that an order of possession cannot be made behind the back of the stranger.

The appellants’ brief contended on the second issue that an action for recovery of possession of land is commenced by the issuance of a writ of summons endorsed with a claim for recovery of possession vide Halsbury’s Laws of England (3rd Edition) volume 32 page 373 paragraph 596; that an action brought for title to a piece of land without claiming possession does not rank as an action for recovery of possession vide Halsbury’s Laws of England (supra) at 596 note g to paragraph 596 and the case of Gledhill v. Hunter (1880) 14 Ch. D 492; that in an action for recovery of possession of land persons in occupation of the piece of land are necessary parties vide Oduola v Nabhan (supra); and that the appeal be allowed on these arguments vide the yet unreported judgment of the Court in MR. ADISA ADEOGUN v. DR. ADETUNJI OLUKAYODE AKINYEMI in appeal No.CA/L/579/06 delivered on 5.4.13, which the appellants submitted is on the same issue as the present appeal.

The respondent’s brief filed on 5.4.13, but deemed filed on 20.2.13, formulated these issues for determination:

“3.01: Issue No.1:

Did Hon. Justice Adeyinka J. erred in law by granting the Plaintiff/Respondent’s Application for Consequential Order for possession based on the judgment against Chief Jumoh Arowolo from whom Mr. Adisa Adeogun and Mrs. Ajoke Adeogun derived their titles to the aforesaid parcel of land when it is considered that Chief Jimoh Arowolo – the predecessor-in-title of the Appellant was put on Notice of the said Application for the Consequential Order for possession prior to its being granted by Hon. Justice Adeyinka, J.

3.0 Issue No.2

Whether the Appellant is not ESTOPPED from complaining that the Plaintiff/Respondent’s Suit No. ID/339/88 did not contain a Claim for possession, when indeed Mr. Adisa Adeogun from whom the Appellant derived her title vehemently opposed the Plaintiff/Respondent’s application for (Mr. Adisa Adeogun, the Appellant’s predecessor-in-title) to being joined at the trial stage of Suit No. Id/339/88 (which Motion was consequentially dismissed) without which the said Mr. Adisa Adeogun/Mrs. Ajoke Adeogun would have had the opportunity to be part of the trial to contest any issues arising from the Plaintiff/Respondent’s claim?

3.03 Issue No.3
Whether the Appellant’s Fundamental Human Rights as enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and Rules of Natural Justice have been violated by the non-participation of the Appellant prior to the grant of the order of possession of the aforesaid parcel of land by Hon. Justice Adeyinka, on 19th April, 2004.

3.04 Issue No.4

Whether the totality of the conduct of the appellant in this case from its inception to date does not constitute a pre-conceived attempt to Overreach the Respondent’s Right to enjoy the Fruits of the Judgment in Suit No.ID/339/88.”

The respondent’s brief contended on the first issue that the court below was right to grant the consequential order of possession that arose from the judgment of Olorunimbe, J., as neither the defendant in that case, Chief Jimoh Arowolo, nor Mr. Adisa Adeogun, the original appellant’s husband, nor the original appellant appealed against the said judgment; that apart from the fact that Chief Arowolo was served the notice of motion for consequential order for possession of the disputed piece of land, the original appellant’s husband, Mr. Adisa Adeogun was aware of the case at the court below and had applied to be joined as an interested party, but the court below refused his application in a ruling dated 19.11.02 which is in page 301 of the record of appeal (the record), therefore the original appellant and her husband were served with the motion for an order of possession of the disputed portion of land and were aware of the said motion before it was heard and granted by the court below.
Arguing on the second issue, the respondent referred to the fact that the respondent as claimant at the court below applied to join the original appellant’s husband as a party to the action when he saw him developing the disputed piece of land, but the original appellant’s husband vehemently opposed the application which was dismissed by the court below, therefore the original appellant’s husband was aware of the pending action at the court below; and that the court below was right to grant the respondent’s prayer for an order of possession of the piece of land in question.

The respondent contended on the third issue that the original appellant was declared a trespasser in the disputed piece of land in virtue of the subsisting judgment of Olorunimbe, J., and no longer had the legal right to seek reliance on section 36 (1) of the 1999 Constitution, as he had no justiciable claim to predicate the application of the principle of fair hearing enshrined in section 36 (1) of the 1999 Constitution with respect to the proceedings in the suit that was at the court below vide Gbadamosi v. Dairo (2007) 1 SC (Pt.11) 151 at 171- 172.

It was argued on the fourth issue that from the facts of the case the original appellant and her husband were privies to suit No.ID/339/89 and were, also, aware of the suit at the court below that brought about the present appeal, but they did not do anything until the respondent obtained the order of possession when they “jumped-up” to challenge it in the appeal, so by their conduct which is to over reach the realization by the respondent of the fruits of his judgment in suit No. ID/339/88 delivered by Olorunimbe, J., in 1998, the court should resist same and dismiss the appeal vide National Inland Waterways v. The Shell Petroleum Development company Ltd. (2008) 5 – 6 S.C. 171 at 191.

The appellant’s reply brief filed on 20.5.13, but deemed filed on 20.3.13, pointed out that their source of title to the parcel of land in issue is from the Iloti Onikosi family, a branch of Ola-Arokun family of Iga-Iloti Ota, not from Chief Arowolo vide page 392 of the record; that during the trial before Olorunimbe, J., the respondent’s application to join Mr. Adisa Adeogun as a party to the suit was dismissed with the suggestion by the learned trial Judge that a separate action could be filed by the respondent against Mr. Adisa Adeogun which was not taken by the respondent who did not, also, appeal the order dismissing his application of joinders, that the motion ex parte which is in page 372 of the record was for service by substituted means by pasting it on Chief Arowolo’s house, not on the land in dispute on which the appellants and some tenants were (and are still) in occupation prior to the order for possession made by the court below in favour of the respondent; that the appellants are in possession of a distinct portion of land covered with a separate certificate of occupancy from the piece of land in possession of the original appellant’s husband’s piece of land, therefore it was necessary to serve the original appellant with the motion for an order of possession before the court below should have proceeded with the determination of the motion vide Leedo Presidential Motel v. B.O. N. Ltd. (1998) 10 NWLR (pt. 570) 570; nor was the order of possession merely a consequential order but a substantive relief which the respondent had not proved his entitlement to and ought not to have been made by the court below vide Akinbobola v. Plisson Fisko Nigeria Ltd. (1991) NWLR (Pt.167) 271 at 288; that the fourth issue does not ar.ise from any ground of appeal and should be struck out vide Igbinoba v. Igbinoba (2003) 2 NWLR (Pt.803) 39 at 51; and that the appellants were not aware of the suit at the court below, therefore it would be wrong to accuse them of conduct calculated to frustrate the respondents from reaping the fruits of the judgment delivered by Olorunimbe, J., so the appeal should be allowed.

The issues formulated by the appellants are apt and mirror the grounds of appeal more than the four issues extracted by the respondent who included the fourth issue which is not supported with a ground or grounds of appeal; consequently, I adopt the appellants’ issues for determination as a guide to the resolution of the appeal. And for convenience, the respondent’s fourth issue for determination which is not tied to any of the grounds of appeal filed by the appellants is incompetent and hereby struck out along with the argument built on it. See Igbinoba v. Igbinoba (supra) at 51 following the cases of Ayalogu v. Agu (1998) 1 NWLR (Pt.532) 129, Lori v. Akukalia (1998) 12 NWLR (Pt.579) 592, U.I.C. Ltd. v. Hammond (Nig.) Ltd. (1998) 9 NWLR (Pt.565) 340, Mogaji v. Military Administrator, Ekiti State (1998) 2 NWLR (Pt.538) 425, Godwin v. C.A.C. (1998) 14 NWLR (Pt.584) 162 and Eagle Construction Ltd. v. Ombugadu (1998) 1 NWLR (Pt.533) 231.

Now, the principal issues in the appeal are whether the appellants were required to be served the application for an order of possession of the disputed piece of land and, whether they were actually served the said process before the court below heard the application and granted it in favour of the respondent.
Page 207 (also referred to in page 313) of the record contains the application for an order of possession of land and for ease of reference and; having regard to the prominent position the nature of the said application had assumed in the appeal, I copy it below.

”MOTION EX-PARTE Brought under Order 42 Rule 1 of the Lagos State High Court (Civil Procedure) Rules 1994 and Under the inherent Jurisdiction of the Court.
TAKE NOTICE that this Honourable Court will be moved on Monday the 15th day December, 1999 at the hour of 9 o’clock in the forenoon or so soon after as Counsel may be heard on behalf of the Plaintiff/Applicant for:-

AN ORDER granting a consequential order of possession to the Plaintiff/Applicant over the land in dispute pursuant to the judgment of this Court dated the 23rd of March, 1998, in which the Plaintiff was declared the owner of the parcel of land shown on Survey Plan attached to the Deed of Conveyance dated 23rd March, 1978, registered as No. 60 at Page 60 in Volume 171 in the Lands Registry in the office at
Lagos and situated at Olayiwola Street, Oko-Oba, near Abule-Egba in Agege Local Government Area of Lagos State.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

The application copied above is indeed an ex parte motion. There is no address for service on the appellants in it.

An order for possession of a piece of land cannot be made on an ex parte application. It has to be made by way of motion on notice as it is a means of enforcing judgment for recovery of possession of land. See the lead Supreme Court case of Leedo Presidential Motel v. B.O.N. Ltd. (1998) 10 NWLR (Pt.570) 353 at 380 and 383:-

“I think the learned Justice is right in the two passages above. I should myself think that an ex parte motion is inappropriate where the interests of the other party will be adversely affected except in a case of extreme urgency and for a limited period only. Justice demands that both sides are heard or given an opportunity to be heard before an order adversely affecting the rights and obligation of one of them is made. This is in accord with the provisions of the Constitution. Natural justice also demands it. I am impressed by the reasoning of their Lordships of the court below in Bayero and I have no hesitation in agreeing with them and adopting the statement of law pronounced by them. And it is very gallant and honourable of learned counsel, Mr. ‘Gafar that he readily and candidly accepted the soundness of the decision in Bayero even though it is against the interest of his client, the 2nd respondent. I hold that the appellant was entitled to be put on notice of motion brought by the judgment creditor to attach and sell her immovable property.
……………..
Neither the judgment debtor (appellant) nor any of those then living in the house was put on notice. I cannot fathom under what law or rule of court the learned Chief Judge proceeded in this matter. One would think that the proper course would be for the purchaser to sue for possession and join all those in possession as defendants. The order for possession made by the Chief Judge on 4/2/97 was clearly a nullity. What was done was not a mere irregularity but a fundamental defect which went to the root of the competence of the court. It is strange indeed that the court below found nothing wrong in the order for possession made on an application ex-parte and in the circumstance that an application to set aside the sale was, at the time of the order, pending. I think the whole procedure was riddled with irregularities and nullities that it would amount to a travesty of Justice to uphold the order made in such circumstance.”

The application was moved as an ex parte motion on 19.4.2004 and granted on the same day. The order for possession of the disputed premises made on an ex parte application by the court below which affected the appellants who were in possession of the disputed piece of land was patently wrong, in my modest view.
The second principal point is whether the appellants were actually served the motion ex parte. As far as I can see in the record and, also bearing in mind that none of the parties drew my attention to whether the court below directed the motion ex parte to be served on the appellants (which I doubt) as no such order was made in the record, and as the motion was argued by the respondent’s learned counsel, Mr. Ogunlesi, as a motion ex parte in page 378 of the record, I agree with the appellants that they were not served the motion ex parte with the hearing date that was heard and granted by the court below on the same day it was argued.
Moreover, proof of substituted service of the process was not established as the court below appeared to have relied on word of counsel in page 378 of the record as proof of the substituted service of the process on the defendant (not the present appellants) at the court below when counsel’s word does not take the place of proof of service of court process which is done by the bailiff or process server of the court. See Societe Generale Bank v. Adewunmi (2003) 4 S.C. (Pt.1) 93 at 99- 102.

Besides, there was an ex parte application to serve to serve the ex parte motion on One Chief Jimoh Arowolo, the defendant in the case at the court below vide page 372 of the record, which bears a different address with the address of the disputed piece of land, the said motion ex parte for an order of possession of the disputed piece of land was not served on the appellants who were and are still in possession of the disputed piece of land, as there was no provision for address of service of the motion ex parte on the appellants in the said motion ex parte.
Therefore the appellants were not put on notice of the hearing of the motion ex parte and the determination by the court below of the motion ex parte in favour of the respondent without putting the appellants on notice of the motion ex parte for their reaction to it was clearly wrong. See the case of Okoye and Anor. v. Central Point Merchant Bank Ltd. (2008) 7 S.C.N.J. 153 at 161 – 162 thus:-

“The very fundamental issue in this appeal is that of service and I would start my deliberation with this issue of whether or not the defendant/respondent was served. It is settled that service of originating processes such as the writ of summons on the defendant is a fundamental condition precedent to the court’s exercise of its jurisdiction to hear and determine the suit. This is so because any judgment or order given against a defendant without service is a judgment or order given without jurisdiction and is therefore null and void. See Alhaji J. A. Odutola v. Inspector Kayode (1994) 2 N.W.L.R. (Pt.324) 1 at 15. Thus the failure to serve a process is not merely an irregularity but a fundamental defect which renders the proceedings a nullity. See Obimonure v. Erinosho (1966) 1 All N.L.R. 250 at 252; Scot-Emuakpor v. Ukavbe (1975) 12 S.C. 41 at 47; Odita v. Okwudinma (1969) 1 All N.L.R. 228; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C.6 at 26″
See also Third Eye Communication Ltd and Ors. v. Ishola (supra) at 555, Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Wimpey Ltd. and Anor. v. Balogun (1986) 3 NWLR (Pt.28) 324 and Leedo Presidential Motel v. B.O.N. Ltd. (1998) 10 NWLR (Pt.570) 353.

It is on these double-barrel grounds that I find merit in the appeal and hereby allow it and set aside the ruling of the court below (Adeyinka, C.J.) granting an order of possession of the disputed plot of land to the respondent. Parties to bear their costs. I commend Mr. Sowemimo, learned SAN for the appellants, and Mr. Ajikanju, learned counsel for the respondent, for their respective crisp briefs which I found useful in the resolution of the appeal.

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the lead Judgment just read by my brother JOSEPH SHAGBAOR IKYEGH J.C.A., I agree with his opinion and conclusions.

The issue of lack of service goes to jurisdiction.

Where parties are served, and served properly, jurisdiction is assumed, by operation of law.
But where parties are not served, or inadequately served, the Court is divested of jurisdiction, also by operation of law.
I also find merit in this appeal and allow it. I set aside the Ruling of the Court below Coram Adeyinka CJ.

TIJJANI ABUBAKAR, J.C.A.: I read the lead judgment just delivered by my brother, Joseph Shagbaor Ikyegh JCA, my lord analysed the issues submitted for determination fully and, I am in complete agreement with the reasoning and conclusion, I adopt them as mine.

Service of process on a party to a proceeding is crucial and fundamental, See: AUTO IMPORT EXPORT v. ADEBAYO (2002) 18 NWLR (PART 799). Failure to serve process where service is required is a fundamental vice, it deprives the trial court of necessary competence and jurisdiction to hear a suit, See: UBA V. OKONKWO (2004) 5 NWLR (PART 867) 445 for this brief reason and the more elaborate reasons given by learned brother in the lead judgment, I too allow the appeal and set aside the ruling of the court below delivered by Adeyinka C. J. parties shall bear their costs.

Appearances

Mr. O. S. Sowemimo, SAN, (with Miss. G. O. Numa) For Appellant

AND

Mr. O. Ajikanju For Respondent