MR. OLUMUYIWA IJALE v. MRS. OLUSHOLA IJALE
(2018)LCN/12119(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of November, 2018
CA/L/389/2002
RATIO
COURT AND PROCEDURE: WHERE A PARTY PROVES NON-SERVICE OF ORIGINATING PROCESS
“It is trite that where a party proves non-service of originating process/hearing notice on him before an action is determined against him the whole proceedings becomes a nullity and the trial Court has the jurisdiction to set it aside because failure to serve such process goes to the root of the jurisdiction of the Court as a condition precedent to the hearing of the action thus making it a jurisdictional issue vide Estate of Late Chief Humphrey I.S. Idisi (substituted by order of Court made on 12/1/16) v. Ecodril Nigeria Ltd. and Ors. (2016) 12 NWLR (pt.1527) 355 following Mbadinuju v. Ezuka (1994) 8 NWLR (pt.364) 535, Mark v. Eke (2004) 5 NWLR (pt.865) 54, Obimonure v. Erinosho (1966) 1 All NLR 240, Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6. Okoye v. C.P.M.B. Ltd. (2008) 15 NWLR (pt.1110) 335 and the cases (supra) cited on the issue by the respondent; more so, the issue of service of originating process/hearing notice touches on fair hearing vide Kida v. Ogunmola (2006) 13 NWLR (pt.997) 377, Scott-Emuakpor v. Ukavbe (1975) 12 SC 41, Eimskip Ltd. v. Exquisite Ind. (Nig.) Ltd. (2003) 4 NWLR (pt.809) 88; consequently, the Court below had the jurisdiction to set aside its judgment upon proof that the respondent was not served with originating process/hearing notice before the judgment sought to be set aside was entered, and in such a case the Court below would not be functus officio in getting rid of the said judgment.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
COURT AND PROCEDURE: WHETHER DEFECT IN PROCEDURE IS REGARDED AS IRREGULARITY
“Further, a defect in procedure is regarded as a mere irregularity which can be waived upon agreement or acquiescence by the opposing party who did not object to it vide Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (pt. 1625) 420 at 434 following Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387, A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (pt. 1546) 210 and Ariori v. Elemo (1983) 1 SC 13.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
MR. OLUMUYIWA IJALE Appellant(s)
AND
MRS. OLUSHOLA IJALE Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is against the decision of the High Court of Lagos State (the Court below) whereby it set aside its judgment for non service of the originating process on the respondent upon which the judgment was based.
The parties were served with hearing notice for the hearing of the appeal. They were not in Court when the appeal was called for hearing on 02.10.18. Order 19 Rule 4(1) of the Court of Appeal Rules 2016 (rules of the Court) was therefore invoked to treat the appeal as having been duly argued on the appellant’s brief filed on 25.01.06 and the respondent’s brief filed on 08.03.07, but deemed as properly filed on 24.06.10. The motion filed by the respondent on 16.01.13 for leave to defend the appeal as a person without means was apparently abandoned and is hereby struck out. Likewise, the motion filed by the appellant on 24.01.17 to have the respondent’s motion struck out. The coast is thus clear to determine the appeal on the merit.
The facts of the case in summary are that the appellant and the respondent were at all material times husband and wife. The former petitioned the latter for divorce of their statutory marriage and for custody of children of the marriage; the latter was purported to have been served the originating process; she did not attend the Court below for the hearing of the case; the hearing proceeded in her absence.
Judgment dissolving the marriage with a decree nisi which was later made absolute and awarding custody of the children of the marriage was entered by the Court below; upon notice of moves to enforce the judgment the respondent brought an application to have the judgement set aside on the ground of non-service of the originating process on her; the Court below considered and granted the application upon the concession made by the appellant’s learned counsel to that effect and set aside its judgment and re-opened the petition for it to be heard on the merits between the parties.
Unhappy with the decision setting aside the decision, the appellant filed a notice of appeal with five (5) grounds of appeal followed with a brief of argument filed on 25.01.06 in which it was contended that the bailiff’s affidavit of service should have been given credit which the law enjoins the Court below to give under Section 114(1) and (2) of the Evidence Act following the old English case of Derby v. Bury Imp. Commors (L.R. 4 Ex 222 at 226 and the Latin Maxim ‘omnia praesumuntur rite et solemmiter est’ meaning all acts are presumed to have been done rightly and regularly; and that had the Court below accorded the bailiff’s affidavit of service the presumption that it was prima facie evidence of service of the originating process on the respondent it would have dismissed the application and refused to set aside its judgment; more so, the presumption that official acts are regularly done under Section 150(1) of the Evidence Act should have enured to the bailiff’s affidavit of service.
The appellant contended that civil matters are decided on the preponderance of evidence, therefore in the absence of evidence by the respondent to establish that the bailiff’s affidavit of service was fraudulently made as alleged by her in paragraph 12 of the further affidavit, the Court below should have held that the respondent did not establish the allegation on the preponderance of evidence placing reliance on the cases of Daodu v. N.N.P.C. (1998) 2 NWLR (pt.538) 355, Kala v. Potiskum (1998) 3 NWLR (pt.540) 1, Itauma v. Akpe-Ime (2000) 7 SC (pt.11) 24.
The appellant contended that affidavit evidence that is unchallenged is deemed admitted and that since the affidavit evidence was in conflict the court below should have resolved it by calling oral evidence and having not followed the said procedure its decision should not be allowed to stand placing reliance on the cases of Falobi v. Falobi (1976) NMLR 169, F.S.B. International Bank v. Imano Nigeria Ltd. (2000) 7 SC (pt.1) 1, Long-John v. Blakk (1998) 6 NWLR (pt.555) 524 at 532, Umoh v. Tita (1999) 12 NWLR (pt.631) 427, Gbadamosi v. Alete (1998) 12 NWLR (pt.578) 402, Amiara v. Alo (1995) 7 NWLR (pt.409) 623.
The appellant contended that the prayers for setting aside the judgment did not contain a prayer on the interest of the children, therefore the Court below was wrong in setting aside the judgment premised on the unsolicited ground citing in support the cases ofGomwalk v. Okwosa (1999) 1 NWLR (pt.586) 225, Bello v. Aruwa (1999) 8 NWLR (pt.615) 454, Awoniyi v. AMORC (2000) 6 SC (pt.1) 103.
The appellant contended that the allegation of fraud was not proved with particularity as to warrant the Court below to rely on it in setting aside the judgment in question placing reliance on the cases of A.-G., Federation v. Ijewere (1995) 8 NWLR (pt.415) 618, Ikyaawan v. Ajivah (1997) 4 NWLR (pt.449) 365.
The appellant contended that having entered judgment in the case the Court below became functus officio and lacked the jurisdiction to set aside the judgment except to correct clerical mistakes and arithmetical errors placing reliance on the cases of Bako v. Mai Adashi (1997) 4 NWLR (pt.497) 116, Kaduna iles Ltd. v. Obi (1999) 10 NWLR (pt.621) 138, F.B.N. Plc v. Obande and Sons Enterprises Ltd. (1998) 2 NWLR (pt.538) 410, Ovenseri v. Osagiede (1998) 11 NWLR (pt.572) 1,Pavex International Co. (Nig.) Ltd. v. I.B.W.A. (2000) 4 SC (pt.11) 196 and Asiyanbi v. Adeniji (1967) 1 All N.L.R. 82.
The appellant contended that the decision of the Court below setting aside its judgment on the irrelevant ground of interest of the children was perverse and constituted a miscarriage of justice and should be set aside on that ground placing reliance on the cases of Agbomeji v. Bakare (1998) 9 NWLR (pt.564) 1, Ige v. Adegbola (1998) 10 NWLR (pt.571) 662, State v. Ajie (2000) 7 SC (pt.1) 24.
The appellant contended in conclusion that the Court below did not even consider that an application to set aside a default judgment must be brought within six (6) days according to the rules of the Court below read with the cases of Odunsi v. U.N.M.I.C. (1998) 2 NWLR (pt.536) 95, Akinriboya v. Akinsole (1998) 3 NWLR (pt.540) 101, adding that the respondent did not show good reasons for her absence at the hearing of the case at the Court below as well as her inability to bring the application within six (6) days plus her omission to pray for an order for extension of time to bring the application to set aside the decision at the Court below, nor evidence of arguable defence to the action when the action is not manifestly unsupportable and whether the respondent would suffer any prejudice if the judgment is set aside and whether the judgment is tainted with fraud or was irregularly obtained; therefore the appeal should be allowed and the ruling of the Court below setting aside the judgment should be set aside and the judgment restored.
The respondent’s brief was filed on 08.03.07, but deemed as properly filed on 24.06.10, in which the respondent argued that the failure to serve the respondent the originating process and other processes filed in the petition is fatal and robbed the Court below of the jurisdiction to hear the matter, consequently the Court below was not functus officio and thus right to set aside the judgment obtained therein in the absence of the respondent placing reliance on the cases of Mark v. Eke (2004) 5 NWLR (pt.865) 54 at 78, Societe Generale Bank (Nig.) Ltd. v. Adewunmi (2003) 10 NWLR (pt.829) 526 at 539, Chief Land Officer v. Alor (1991) 4 NWLR (pt.187) 617 at 629, Okafor and Ors. v. A.-G., Anambra State (1991) 6 NWLR (pt.200) 659 at 680, Adigun v. A.-G., Oyo State (1987) 1 NWLR (pt.53) 678, Obodo v. Olomu (1987) 3 NWLR (pt.59) 111, Dahuwa v. Adeniran (2003) 17 NWLR (pt.849) 376 at 386 – 387, Folorunsho and Anor. v. Shaloub (1994) 3 NWLR (pt.333) 413 at 422.
The respondent argued that counsel for the appellant at the Court below, a Mr. O. A. Faboro, conceded to the application in page 76 of the record of appeal (the record) whereupon the Court below granted the application placing reliance on the case of Udo v. The State (2005) 8 NWLR (pt.928) 521 at 537 – 538.
The respondent referred to paragraphs 12, 13, 15 of the affidavit in support of the application in pages 44 – 45 of the record and paragraphs 12 and 13 of the further affidavit in pages 64 – 65 of the record vis-a-vis the bailiff’s affidavit of service in pages 78 – 79 of the record which does not contain any deposition to the effect that the respondent received and tore up any Court process, or that she engaged the bailiff in a combat as alleged by the appellant in his counter affidavit showing the respondent established that she was not served with the originating process in the petition thus rebutting the presumption of the service of the process on the respondent; and that based on the materials and documents placed before the Court below which raised doubt as to whether the respondent was served with the originating process or not, which impacted negatively on the credibility of the appellant as regards the issue of whether the respondent was served or not, the Court below was right in setting aside the judgment placing reliance on the case of Chairman National Population Commission v. The Chairman Ikere Local Government and Ors. (2001) 13 NWLR (pt.731) 540 at 558 ? 559; upon which the respondent urged that the appeal should be dismissed and the case remitted to the Court below to be determined on the merit.
It is trite that where a party proves non-service of originating process/hearing notice on him before an action is determined against him the whole proceedings becomes a nullity and the trial Court has the jurisdiction to set it aside because failure to serve such process goes to the root of the jurisdiction of the Court as a condition precedent to the hearing of the action thus making it a jurisdictional issue vide Estate of Late Chief Humphrey I.S. Idisi (substituted by order of Court made on 12/1/16) v. Ecodril Nigeria Ltd. and Ors. (2016) 12 NWLR (pt.1527) 355 following Mbadinuju v. Ezuka (1994) 8 NWLR (pt.364) 535, Mark v. Eke (2004) 5 NWLR (pt.865) 54, Obimonure v. Erinosho (1966) 1 All NLR 240, Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6. Okoye v. C.P.M.B. Ltd. (2008) 15 NWLR (pt.1110) 335 and the cases (supra) cited on the issue by the respondent; more so, the issue of service of originating process/hearing notice touches on fair hearing vide Kida v. Ogunmola (2006) 13 NWLR (pt.997) 377, Scott-Emuakpor v. Ukavbe (1975) 12 SC 41, Eimskip Ltd. v. Exquisite Ind. (Nig.) Ltd. (2003) 4 NWLR (pt.809) 88; consequently, the Court below had the jurisdiction to set aside its judgment upon proof that the respondent was not served with originating process/hearing notice before the judgment sought to be set aside was entered, and in such a case the Court below would not be functus officio in getting rid of the said judgment.
The record which is binding on the parties and the Court states solemnly in page 76 thus :
O. Ijale
Vs.
Mrs. Olushola Ijale
Parties: Present
Appearance: L. Ezeama for Respondent/Applicant.
O.A. Faboro for Petitioner/Respondent. O. Sofowora leading for the Respondent/Applicant.
Court: I refer to the main ground for this application which is that the Respondent was not served with the petition and to the conflicting affidavits of both parties and to the conflicting affidavits of both parties and hold that the bailiff who produced the proof of service ought to be called to testify which will involve trial within trial. In view of the interest of the five issues of the marriage, this application ought to be granted under the inherent jurisdiction of the Court.
Mr. Faboro: No objection.
Mr. Sofowora: No objection.
I move in terms of the Respondent?s application dated 12/10/2000.
Court: Ordered as prayed.
1. The judgment entered on the 5/7/99 is hereby set aside under the inherent jurisdiction of the Court?.
The appellant’s learned counsel conceded/acquiesced in the procedure (supra) leading to a grant of the application. The appellant would not be heard to complain on appeal as the said concession is binding on him videMosheshe General Merchant Ltd. v. Nigeria Steel Products Ltd. (1987) 1 NWLR (pt. 55) 110, Orisharinu v. Mefun 13 N.L.R. 187. The appellant would not be allowed to blow hot and cold at the same time or to approbate and reprobate.
Although the procedure (supra) was irregular or wrong the acquiescence of the appellant who was present at the Court below at the time his learned counsel made the concession without protest from him indicated the appellant consented to the stance of his learned counsel and cannot be allowed to shift the goal-post or change his stand on appeal more so, the appellant has not shown he suffered miscarriage of justice thereby vide Ayanwale v. Atanda (1988) 1 NWLR (pt. 68) 22, following Akhiwu v. The Principal Lotteries Officer Mid Western State and Anor.(1972) 1 ALL NLR 299, C.F.A.O. v. Onitsha Industries Ltd. (1932) 11 N.L.R. 102, Colony Development Board v. Kamson and Ors. 21 N.L.R. 74, Johnson v. Aderemi (1955) 13 WACA 297 at 298, Noibi v. Fikolati (1987) 1 NWLR (pt. 52) 619, Egbo v. Laguma (1988) 3 NWLR (pt. 80) 109 following Eboh and Ors. v. Akpotu (1968) 1 ALL NLR 220 at 224 and 225. Moreover, the appellant did not challenge the procedure (supra) in the appeal.
Further, a defect in procedure is regarded as a mere irregularity which can be waived upon agreement or acquiescence by the opposing party who did not object to it vide Heritage Bank Ltd. v. Bentworth Finance (Nig.) Ltd. (2018) 9 NWLR (pt. 1625) 420 at 434 following Saude v. Abdullahi (1989) 4 NWLR (pt. 116) 387, A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (pt. 1546) 210 and Ariori v. Elemo (1983) 1 SC 13.
At any rate, the bailiffs? affidavit of service in pages 78 – 79 of the record was not in tandem with the appellant’s affidavit on the issue of service as to what transpired at the time of the alleged service as deposed to by the appellant, nor does the bailiff?s affidavit of service depose to the service of the hearing notice of the petition on the respondent and when the alleged service was made as to materially contradict the respondent’s affidavits in pages 44 – 45 and 64 – 65 of the record, therefore it was not necessary to call oral evidence which would have become necessary if and only if the affidavits were in violent conflict vide Chairman, National Population Commission v. The Chairman Ikere Local Government and Ors. (supra), Estate of Late Chief H.I.S. Idisi v. Ecodril (Nig.) Ltd. (supra) and Ahmed v. Ahmed (2013) 15 NWLR (pt. 1377) 274 at 349 (paras E – G).
The arguments in the concluding part of the appellant’s brief do not have bearing on the grounds of appeal and any issue for determination in the appeal are on that basis a non-event; more so, the said arguments do not constitute the parameters or conditions for the setting aside of judgment given without serving the opponent the originating process/hearing notice, but on default judgments.
In the final analysis, I find no merit in the appeal and hereby dismiss it and abide by the decision of the Court below (Adeyinka, J., as he was). Parties to bear their costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA. just delivered with which I agree and adopt as mine. I have nothing more to add.
UGOCHUKWU ANTHONY OGAKWU. J.C.A.: I have had the privilege of reading in draft the leading judgment just delivered by my learned brother, Joseph Shagbaor Ikyegh, JCA and I agree that there is no substance in this appeal and that the same should be dismissed.
For the same reasons set out in the said judgment, I too, dismiss this appeal and abide by the consequential orders including those as to costs therein contained.
Appeal dismissed.
Appearances:
Mr. K. Ogunyemi (prepared the brief but did not appear, though served hearing notice).
For Appellant(s)
S. Y. Kolawole Esqr., (prepared the brief but did not appear, though served hearing notice).
For Respondent(s)
