MRS. OLUKEMI AKANDE BELLO v. SEGUN OHIKHUEME & ORS
(2014)LCN/7616(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of December, 2014
CA/I/254/2007
RATIO
PRACTICE AND PROCEDURE: SERVICE OF A PROCESS; THE EFFECT OF THE FAILURE TO SERVE A PROCESS WHERE IT IS REQUIRED
Where service of a process is required, failure to serve it is a fundamental vice and the person 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. Further to that, service of a relevant court process is also a condition precedent to the exercise of jurisdiction by the court out of whose registry the writ of summons was issued. See SKENCONSULT VS. UKEY (1980) 1 SC 6 at 26 and NATIONAL BANK VS. GUTHRIE (1993) 4 SCNJ 1 at 17. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
COURT: INTERFERENCE; WHETHER THE TRIAL COURT WILL INTERFERE WITH THE DISCRETIONARY POWER OF THE TRIAL COURT
Where a trial court is vested with a discretionary power to exercise, this court is always very reluctant to interfere with the exercise of that power, except where upon a complaint it was satisfactorily shown that the power was not exercised judicially and judiciously. In BIOCON AGROCHEMICALS (NIG) LTD & ORS VS. KUDU LTD & ANOR (2000) 15 NWLR (Pt.691) 493, (2000) LPELR – 784 (SC) the Supreme court decided that it is settled law that an appellate court will not generally interfere with the exercise of discretion by a Lower Court unless it is shown that there has been a wrongful exercise of the discretion. Where the Lower Court acted under a misconception of law or under a misapprehension of fact in that it either gave weight to irrelevant facts or it omitted to take into account matters that are relevant, or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to intefere. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
MRS. OLUKEMI AKANDE BELLO
(for herself and on behalf of the entire Oladejo Akande family) Appellant(s)
AND
1. SEGUN OHIKHUEME
2. JOHNSON ADEGBITE
3. ARANSI AKEEM Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court, Ibadan Judicial Division delivered on 27th February, 2007 in suit No. 1/2148/2004.
The Appellant was the Plaintiff before the High Court and in an action dated and filed on 24/02/2004, she claimed for a declaratory and injunctive reliefs in the following terms:-
“(a) Declaration that the plaintiff is entitled to a Certificate of Statutory Right of Occupancy in respect of the piece of land situate, lying and being at Oyekunle Layout, Ibadan, Alegongo Area, in the Lagelu Local Government Area of Oyo State.
(b) Perpetual injunction restraining the Defendants either by themselves, their agents, privies and/or any other person whomsoever from further trespassing on the land in dispute.”
The Defendants/Respondents entered appearance on 16/04/04 in a memorandum of appearance filed by Messrs. Dele Awe and Co. of N6A/387, Oyo Road, Opposite Ajibade Bus Stop, Coca-Cola, Area, Ibadan. Since then, the Respondents did not take any further serious steps in the matter. The case continued to suffer series of adjournments.
On the 12/10/2006, the learned trial judge saw no further reasons for any adjournment. He ordered for the matter to proceed to trial. The Appellant opened her case. She gave oral evidence in support of her amended statement of claim dated and filed on 6/04/2004. At the end of her evidence on pages 39 to 40 of the record of appeal, learned counsel Mr. Alabi, proceeded to address the court at the end of which the learned trial judge adjourned the matter to 30/10/2006 for judgment. While judgment was being awaited, the Appellant filed a motion on notice on 25/10/2006 for leave to amend her amended statement of claim. The application was heard and granted on 30/10/2006, in the absence of the Respondents. Thereafter, the learned trial judge proceeded to deliver his judgment. He granted the 2 reliefs in terms.
In an application dated 30/11/2006, the Respondents prayed for an order to set aside the default judgment delivered on 30/10/2006. This application was later withdrawn and struck out. Meanwhile, the judgment of 30/10/2006 was somehow enforced, more particularly for the 1st and 2nd Respondents to give up and yield possession of the subject matter premises to the Appellant. Another motion dated 16/01/2007 was filed on 17/07/2007, for an order setting aside the writ possession dated 30/10/06, which was used to take over possession the properties of the 1st and 2nd Respondents and also for an order setting aside the execution of judgment dated 29/12/2006. This application was adjourned to 30/01/2007 for hearing.
However, on 23/01/2007, the Respondents filed another application for an order setting aside the judgment delivered on 30/10/06. The application to set aside writ of possession and execution of judgment was, for reasons not very clear, brought forward for hearing on 26/01/2007 instead of the earlier advertised date of 30/01/2007. In a ruling delivered on the same 26/01/2007, the learned trial judge granted the application in terms and proceeded to set aside and declare the writ of possession as invalid as well as the execution of judgment made pursuant thereto.
Issues were duly joined on the application for an order to set aside judgment and it was fully argued on 7/2/2007 and ruling adjourned to 27/02/2007. In its ruling, the Lower Court set aside its earlier judgment
delivered on 30/10/2006. The Appellant was dissatisfied with the order setting aside the judgment delivered in her favour, she appealed to this Court in a notice of appeal dated 13/03/2007, but filed on 16/04/2007. The notice of appeal incorporates 5 grounds of appeal. They are as follows:
GROUND OF APPEAL
1. The Lower Court erred in law when it refused to call oral evidence to resolve the conflicts in the affidavit of parties.
PARTICULARS
(a) There were visible conflicts in the affidavit which cannot be resolved without taking evidence.
(b) The description of service of the processes of court are contradictory, conflicting and irreconcilable
2. The Lower Court erred in law when it said no time limit is prescribed for bringing the application to set aside the judgment.
PARTICULARS
(a) The application to set aside the judgment of the court was brought 3 months after judgment was delivered.
(b) The Application to set aside the judgment of the court did not pray for extension of time within which to bring the application a stipulated by law.
(c) The application was brought in clear disobedience to the rules of court.
3. The Lower Court erred in law when it exercised its discretion in favour of the applicant and set aside the judgment given by it on 30/10/2006.
PARTICULARS
(a) There was no justifiable reason for setting aside the judgment.
(b) The Defendants have not satisfied the requirement set out for setting aside the judgment
(c) The Defendant entered appearance and failed to take further steps.
(d) The Defendant filed an application for extension of time within which to file their defence and failed to pursue it.
(e) The Defendants were fully represented by counsel who appeared in court several times before the suit was heard and judgment delivered thereby.
(f) The Defence counsel orally sought the indulgence of court several time but failed to back it up with action.
(g) The Defendants were not diligent in defence of the case against them.
4. The Lower Court erred in law when it said the Defendants were not served with the process of court personally.
PARTICULARS
(a) The suit was brought to the notice of the Defendants.
(b) The Defendants retained a counsel for the purpose of fighting the suit.
(c) The Defendants filed a Memorandum of Appearance and went ahead to file an application to extend the time within which to file their defence.
(d) The Counsel was served with the Hearing Notice severally on the order of the court.
5. The Ruling is against the weight of evidence in the surrounding circumstances of the case.
To argue the appeal, learned counsel Mr. Kola Alabi, on behalf of the Appellant filed a brief of argument on 4/2/08, while learned counsel Mr. Adeniran Adetoye filed a Respondents’ brief on 20/03/08. From the 5 grounds of appeal, learned counsel to the Appellant formulated and argued the 5 issues for the determination of this appeal. They are:-
“1. Whether the learned trial judge was right to decline to take oral evidence to resolve the conflict in the affidavit of the parties.
2. Whether the defendants can bring an application to set aside the judgment of court obtained in their absence at their convenience without first asking for extension of time which to apply to set aside the Judgment of court.
3. Whether the learned trial judge was right in setting aside the Judgment given on 30/10/06 when the defendants have not justifiably satisfied the requirement for setting aside the judgment.
4. Whether the defendants in this case can be said not to have personal knowledge of the case against them.
5. Whether the learned trial judge was justified in setting aside the judgment of the court given on the 30/10/06 having regard to the surrounding circumstance of this case.”
On behalf of the Respondents, learned counsel formulated and argued 3 issues for the determination of this appeal. They are:-
“1. Whether the learned trial judge was right to have relied on documentary evidence, in place of taking oral evidence, in resolving the conflicts in the Affidavits relied on by both parties.
2. Whether the service of Court process on the Defendants/Respondents were proper service.
3. Whether the learned trial judge was justified in setting aside the judgment of the court given on the 30/10/06 having regard to the totality of evidence placed before it.”
At the hearing of the appeal before us on 11/11/2014, learned counsel Mr. Alabi, identified his above said brief of argument. He thereafter adopted and relied on his arguments and submissions in the brief in urging this court to allow this appeal and proceed to set aside the order of the Lower Court setting aside its judgment delivered on 30/10/06. Also, learned counsel Mr. Adetoye identified his brief of argument. In a similar fashion, he adopted and relied on all the arguments and submissions canvassed therein and urged on the court to dismiss this appeal for lacking in merit and to affirm the order of the Lower Court setting aside its judgment delivered on 30/10/06.
I have carefully read and considered the 5 issues formulated and argued on behalf of the Appellant and I wish to point out that there is a seeming duplication with respect to issues 3 and 5. I am of the very strong view that one can be subsumed into the other. I prefer issue 5 as being more apt and concise against the rather clumsy issue 3. I would therefore proceed to determine this appeal upon the proper issues formulated on behalf of the Appellant.
In arguing his issue one learned counsel to the Appellant Mr. Alabi tried to explain that the Respondent have consistently maintained that they were not served with the hearing notices ordered to be served on them by the trial court. He added further that the Respondents even denied being served with other processes of the court in the action of the Appellant. They also denied refusing to sign for any process meant to be served on them. In an effort to debunk this consistent denial of the Respondents, Mr. Alabi, of counsel pointed out that the Appellant deposed to a counter-affidavit to which Exhibits 81 – 87 were attached. According to learned counsel, the effect of these Exhibits was to show that the Respondents were duly served with the relevant court processes but chose to absent themselves from the Court.
It was against this circumstance that learned counsel sub-poened the bailiffs of the Lower Court who purportedly served the relevant processes of the court meant for service on the Respondents with a view to their giving oral evidence to resolve the seeming conflicting averments of the parties. Inspite of this effort of learned counsel, the learned trial judge declined to allow the bailiffs to give oral evidence because he was of the view that there were sufficient particulars for him to act on to resolve what he himself considered as conflicts in the affidavits evidence before him. With this explanation in view Mr. Alabi, of counsel submitted that when 2 parties to a dispute render their facts in affidavits and there are conflicts in the affidavits on the substance of the dispute such conflicts are best resolved by calling or hearing oral evidence from the parties. He anchored his submission on the authority of the decisions in MILITARY ADMINISTRATOR F.H.A. VS. ARO (1991) NWLR (Pt.198) 408, FALOBI VS. FALOBI (1976) NMLR 169 at 171 and 178 and AKINSETE VS. AKINSETE (1966) 1 ALL NLR 117 at 118.
Further to that, learned counsel is of the opinion that it was crucial to be determined and ascertained by the court if the Respondents had been served with the concerned and relevant court processes, the authenticity of the purported proofs of service, or whether there was any refusal to sign for court processes, or the identity of any persons who were served with court processes etc. According to learned counsel, there were no sufficient materials to determine these issues in the absence of oral evidence, therefore the learned trial judge was wrong to have declined to call oral evidence. He urged on this court to so hold and proceed to resolve this issue against the Respondents.
The brief of the Respondents argued its issues 1 and 2 together at pages 5 to 10. These 2 issues were respectively formulated out of grounds 1 and 4 of the grounds of appeal. Issue 4 of the Appellant’s issues for determination was formulated out of ground 4 of the grounds of appeal. I will therefore proceed to consider all the arguments and submissions of the Appellant on issue 4 before I come back to the composite response of the Respondents. In arguing his issue 4 in paragraph 8.0 to 8.15 of his unpaginated brief, Mr. Alabi, of counsel began by referring to the decision in AINA vs. OBABIOLORUNKOSI (1986) 2 NWLR (Pt.22) 310 where it was held that the purpose of an affidavit of service is to prove that the process emanating from the court has been brought to the notice of the person whose presence is required before the court. He added that this is a matter of procedural steps and the type of form used does not affect the substance.
Having laid this foundation learned counsel proceeded to show that it was upon the receipt of processes of court in this action that led the Respondents to brief the law firm of Dele Awe & Co for whom Mr. O. Olatunbosun may have been acting. He referred to pages 24 – 25 of the record of appeal to show that Dele Awe & co entered appearance on behalf of the Respondents. He also added the filing of a motion for extension of time to file statement of defence goes to show further that there was due and proper service of the originating processes on the Respondents. He therefore maintains that they have taken positive steps in the defence of the action and cannot be heard to complain at a late stage. Learned counsel went to the extent of outlining the format of an affidavit of service and its essential features and added that Exhibits B1 – B7 are sufficient proof that all relevant processes had been duly served on the Respondents. He argued further that the law firm of Dele Awe & Co. and its Clerk/Secretary as well as learned counsel Mr. Olatunbosun must remain culpable for failing to recall the adjourned date of this matter after they were duly served with hearing notice to that effect. He argued that this was inexcusable.
According to Mr. Alabi, of counsel whatever altercation that there was between learned counsel Mr. O. Olatunbosun and the Respondents, the fact remains that any party who retained the services of counsel to represent it in a matter cannot complain of not having knowledge of the hearing dates in respect of it. Against this background, Mr. Alabi submitted that the absence of the Respondents to defend the suit of the Appellant was deliberate. He urged on the court to resolve this issue in favour of the Appellant against the Respondent.
Learned counsel to the Respondents Chief Adetoye argued his issues 1 and 2 together. In his preliminary remarks, he explained that from the affidavit evidence of the parties the Lower Court was faced with the issue of whether the Respondent herein were property served with the amended writ of summons and amended statement of claim of the Appellant. He went further to highlight the crux of the matter. This, according to Chief Adetoye, of counsel, is that while the Appellant maintained that Exhibits B1 – B7 are proofs of service of the proofs of service of the originating processes and other subsequent processes, the Respondents denied ever being served as purportedly would appear on Exhibits B1 to B7. It was against this scenario that learned counsel to the Appellant sought to convince the learned trial judge of the need to resort to oral evidence of the Bailiffs who purportedly served. However learned counsel to the Respondents believed and convinced the Lower Court that oral evidence was unnecessary because there were before the Lower Court other documentary materials sufficient enough to enable it to fully resolve the issue at stake. The learned trial judge was convinced.
After having set out these parameters Chief Adetoye submitted that the learned trial judge rightly refused the invitation to call oral evidence because there were sufficient other materials before him to enable him to resolve the issues accurately. He referred to the decision of the Supreme Court in L.S.P.D.C. vs. ADOLD STANN INT. (NIG) LTD (2005) 2 NWLR (Pt.910) 603 at 606 and per Tobi, JSC at 621 F – H. Where it was held that for a conflict in affidavit to receive the attention of the court, the conflict must really affect the live issues involved in the case. The conflict must be tangible and not intangible, not immaterial, it must be substantial and fundamental to the live issues in the case. The Apex Court further added that where the conflicts are peripheral, cosmetic, inarticulate, or a mere farce or orchestrated by a party, a court of law will not order that oral evidence be led to resolve or reconcile the “conflicts” that seemingly arose. Against the facts and circumstances of this matter, Chief Adetoye, of counsel maintained that the conflict involved in the affidavits of the parties was indeed tangible, material as well as substantial and fundamental but there were sufficient other documentary material to resolve same without resorting to oral evidence. Learned counsel added that if there was authentic documentary evidence supporting one of the affidavits in conflict with another, a Court faced with a situation as the Lower Court in this appeal ought to look at that documentary evidential material to arrive at a fair and just decision. He anchored his submission with the decision in the case of ANZAKU vs. GOVT. OF NASSARAWA STATE (2005) 5 NWLR (Pt.919) 458 at 464.
In an attempt to breakdown the issues further, learned counsel Chief Adetoye referred to Exhibits B1 to B7 attached to paragraph 11 of the counter-affidavit of the Appellant/Plaintiff and maintained that these documents are key to the determination of whether service of particular processes of the court had been effected on the Defendants/Respondents. He pointed out that the effect of these documents will render the need for any oral evidence totally unnecessary. He opined that the most relevant and key processes are the amended writ of Summons and amended statement of claim. He quickly pointed out that the effects of Exhibits B1 – B7 punctured the claim of the Appellant that these relevant processes were served on the Respondents. He maintained that the learned trial judge was right to hold that there was no need for oral evidence to resolve the issue and he urged on this Court to so hold.
While turning his attention specifically to Exhibits B1-B7, learned counsel observed that these documents are clear evidence that no personal service was effected on the Respondents, as far as the amended writ of summons and the amended statement of claim remain the most relevant processes to be served as originating processes. He added that once a court process has been amended, the amendment relates back to the date of the document and what stood before the amendment is no longer material before the court and no longer defines the issues to be tried. He referred to and relied on the decision in TANAREWA (NIG) LTD vs. ARZAT (2005) 5 NWLR (Pt.919) 593 at 604 to support his submission.
Still on the issue of requirement of oral evidence to resolve conflicting averments in affidavits and the cornerstone effect of personal service of originating processes learned counsel referred to the strong views of the learned trial judge that there was no need to resort to any oral evidence as exhibits B1 – B7 when allowed to speak for themselves as documents would appear to prove that there was no personal service of the relevant processes on the Respondents. He highlighted this view of the Lower Court and maintained that it was correct in the circumstance. Because personal service is a pre-condition to a proper exercise of jurisdiction, learned counsel pointed out that where there is procedural shortcoming in service of processes, all subsequent proceedings are a nullity ab initio. He urged this court to so hold and resolve these 2 issues against the Appellant.
In resolving these issues, it is important to underscore some of the facts which have been ignored even though they are of profound effect. Here, I am referring to the memorandum of appearance filed by law firm of Dele Awe and Co. It was filed on the 16/4/2004. Before the memorandum of appearance was filed an ex-parte proceeding was held on 6/4/04 and the matter was adjourned to 4/5/04 for motion but no order was made for Hearing Notice to be served personally on the Respondents as at that date no memorandum of appearance had been filed by Dele Awe and Co. No proceedings took place on 4/5/04. However, the matter was called on 27/5/05 and it was recorded that there was no proof of service in the file. It was adjourned to 9/6/05 with an order for hearing notice to be served on the Defendants. It was from this date that the Lower Court began to overreach a valid memorandum of appearance when it ordered for personal service on the Defendants. Also, for reasons which do not appear obvious from the record, learned counsel Mr. Akinola for the Appellant as Plaintiff filed an affidavit of service on 24/10/05 showing that he served motion for an order to set down the matter for Hearing.
At its proceedings of 25/10/05, the application to set down the matter for hearing was heard and granted in the absence of the Respondents and the matter was adjourned to 6/12/05 with an order for hearing notice to issue on the Respondents. On the 5/12/05, learned counsel Mr. Olaitan Olatunbosun of Dele Awe & Co. filed an application for extension of time for the Respondents to file their statement of defence. The matter was called on 26/01/06 and adjourned to 23/2/2006 for mention, in the absence of the Respondents and their counsel. No reasons were recorded for the adjournment, except for the application of learned counsel to the Appellant to file his survey plan. No order was made for hearing notice. As may be expected, both the Respondents and their counsel were also not in the court on 23/02/2006. It was curious that at the end of the proceedings of 23/02/06, the Respondents’ motion for extension of time to file statement of defence was struck out when it had not been set down for hearing on any of the recorded previous proceedings of the Court.
After the striking out of the motion for extension of time the matter was adjourned to 5/4/06 for hearing with an order for hearing notice to specifically be issued and served on counsel to the Respondents. At the proceedings of 5/4/06, the court satisfied itself that hearing notice had been duly served on the Respondents but they were not in court and not represented by counsel. An adjournment was granted to 11/5/06 for hearing with an order for hearing notice to be served on the Respondents, through their counsel. Also, for reasons not obvious from the record no proceedings were held on 11/5/06, but on 1/08/06, the matter was called and for the first time, the Respondents were represented by counsel and the matter was seemingly adjourned to 12/10/06 at his instance for hearing with an order for N2000 costs against the Respondents. On the next adjourned date both the Respondents and their counsel were not in court. No reasons were placed on record why they were both absent. What appeared on record, however, was recounting of the various adjourned dates when the Respondents and their counsel were absent from court.
It was against the foregoing scenario that the matter proceeded to trial. The Appellant was led to give an oral testimony. At the end of her testimony, learned counsel Mr. Alabi, on behalf of the Appellant addressed the court and the matter adjourned to 30/10/2006 for judgment. No order was made for hearing notice on the Respondents. In an application dated 20/10/06 but filed on 25/10/06, the Plaintiff/Appellant sought for an order of the Court to:-
“amend the name of the plaintiff on the statement of claim as shown in the schedule of amendment attached thereto.”
On the Schedule of Amendment, it was set out thus:
“Delete” for herself and on behalf of Adeoye family, under the name of the plaintiff and replace with ‘for herself and on behalf of the entire Oladejo Olaseinde Akande Family'”
This application was purportedly served counsel to counsel. The affidavit of service was filed in court on 30/10/2006 – see page 46 of record of appeal. The affidavit is short of details as to when exactly this application was served on Messrs. Olatunbosun and co. and not Dele Awe and Co. The record still remains unclear if Messrs Dele Awe and Co. had ceased being counsel to the Respondents or that Mr. Olatunbosun, of counsel was now acting alone for them?
At page 53 of the record of appeal proceedings were held on 30/10/2006 and the application for leave to amend statement of claim was heard and granted. Respondents and their counsel were still not in court probably because no order was made for the service of hearing notice at the end of the proceedings of 12/10/2006. The proof of service at page 46 of the record merely indicated that it was the motion for leave to amend statement of claim that was purportedly served on purported counsel to the Respondents. The application was granted with N2000 costs against the Respondents and the matter still adjourned to the serve 30/10/2006 when the adjourned default judgment was delivered, even though the record of appeal does not show when the judgment was actually delivered, though it is dated 30/10/06. The learned trial Judge, upon this judgment, also issued a writ of possession dated the same 30/10/06 in favour of the Appellant. Sequel to the writ of possession, the Appellant took very strong and positive steps to fully execute the judgment on 29/12/06. This is the very judgment that was subsequently set aside by the same judge who delivered it.
I took time to review and set out the most critical and relevant moment in the life of this matter at the Lower Court in order that one can have a full and clear picture how the default judgment was arrived at as well as focus on the proper perspective of this appeal. In my view, doing that would greatly and tremendously assist in the determination of the issues respective learned counsel argued in this appeal.
I wish to observe that Exhibits B1 to B7 do not form part of the record of appeal transmitted to this court. I have read the entire 140 pages of the record and none of those pages contain the proofs of service said to be exhibits B1 – B7. Be that as it may, and having regard to the foregoing narrative of all the steps leading to the default judgment, the learned trial judge was indeed right, in my view, to decline to call for oral evidence of the Bailiffs to resolve what learned counsel to the Appellant believes amounted to conflict in affidavit evidence.
Where affidavits of parties before a Court appear to contradict one another on a very material issue, the court cannot resolve such conflict by evaluating the contradictory averments to achieve the resolution of the conflict. See ARJAY LTD VS. A.M.S. LTD (2003) 7 NWLR (Pt.820) 577. Against this difficulty, the law is settled and well defined that where affidavits of the parties conflict on very crucial, material and important aspect of the dispute between them, the conflict should be resolved by oral or some other evidence. However, there is an exception to this general rule if the facts in conflict are flimsy, distractive or generally irrelevant and immaterial, the court can disregard them and evaluate the evidence on both sides to resolve them. See the vintage decision in FALOBI vs. FALOBI (1976) 9-10 SC 1 which has consistently been followed and applied as the locus classicus on when to resort to oral evidence when confronted with conflicting affidavit evidence. See also EZECHUKWU vs. ONWUKA (2006) 2 NWLR (Pt.963) 151 at 196 to 197 and DANA IMPEX VS. AWUKAM (2006) 3 NWLR (Pt.968) 544 AT 563.
In the circumstances of this appeal, while the Appellant maintained that the Respondents had been served with all the most relevant processes of the Lower Court before the judgment of 30/10/06, the Respondents denied being so served. Learned counsel to the Appellant relied on Exhibit B1 to B7 to prove his position and had sought to further rely on the evidence of the bailiffs of the Lower Court to re-inforce his assertions. Just as I pointed out earlier that Exhibits B1 to B7 are unfortunately not before this court. Even if they are of any value or significance in resolving the contentious issue of whether service of all relevant processes had been effected on the Respondents, there is nothing this court can do. Suffice it to say, however that the Appellant was granted leave to amend her statement of claim on 30/10/06. The learned trial judge was entitled to refer to the record before him to establish that fact. There is no doubt and it does not admit of any arguments, that the same amended statement of claim, upon which judgment was given on the same 30/10/06, could not have been served on the Respondents and they were entitled to be served to enable them to prepare their defence, because all the previous amended statements of claim have now been superceded by this most recent one. No oral evidence of any of the parties can change this well-established fact. In view of this observation, I do not think it is possible to fault the decision of the learned trial judge to-decline the invitation to resort to oral evidence in the circumstances. Issues one and four as argued by the Appellant must be resolved against her and in favour of the Respondents and are hereby accordingly so resolved.
Issue 5 in the Appellant’s brief is:
“Whether the learned trial judge was justified in setting aside the judgment of the Court given on the 30/10/06 having regard to the surrounding circumstance of this case.”
Learned counsel to the Appellant argued this issue in his paragraph 9.01 to 9.07 in one and a half pages of his unpaginated brief of argument. Issue 3 as argued on behalf of the Respondents at pages 10 to 14 of their brief is similar in con.
In arguing this issue, learned counsel to the Appellant opined that the discretion of the Lower Court was exercised on contentious and unproved facts. He still maintained that the Respondents did not prove non-service of the processes of Court on them.
To that extent learned counsel submitted that the Lower Court cannot be said to have exercised its discretion judiciously and judicially. He added further that the extent of this non-proper exercise of discretion was because of misapprehension of facts and giving weight to irrelevant facts and also failing to take into account matters that were relevant. He went on to fault the approach of the learned trial judge at page 150 of the record of appeal when he directed his mind to the case file and made use of what he considered as relevant evidence to resolve all the issues in the process leading to the setting aside of the default judgment. In order to re-inforce his arguments and submissions, learned counsel pointed out that the facts deposed to by the Respondents in their various affidavits appear contrary to the facts contained in the case file. He added also, that the Lower Court did not take into consideration the various activities and conducts of the Respondents from the inception of this matter up to the time the judgment of the Court was executed.
Upon all the foregoing learned counsel Mr. Alabi urged on this court to interfere with the improper exercise of discretion by the Lower Court in the circumstance and reverse the ruling setting aside its earlier judgment delivered on 30/10/06 and restore it as well as to dismiss the Application for an order to set it aside. He further urged on the court to resolve and determine this issue in favour of the Appellant and to also allow this appeal.
In his response, learned counsel Chief Adetoye, for the Respondents, began with an explanation that his issue 3 is a response to issues 2, 3 and 5 in the Appellant brief of argument. Further to this, learned counsel referred to order 37 Rule 9 of the Oyo State High Court Rules which requires the need for an order for extension of time if a party failed to apply for a judgment to be set aside within 6 days. Learned counsel was quick to point out that the provision is not relevant because the Respondents brought their application to set aside judgment under Order 27 Rules 6 and 10 as well as under the inherent jurisdiction of the Lower Court. Against this background learned counsel went on to quote very extensively from page 149 to 150 of the record of appeal containing the reasoning of the learned trial judge before he came to his conclusion that the judgment he delivered on 30/10/06 ought to be set aside. Learned counsel Chief Adetoye approved and saw nothing wrong with the approach and steps taken and considered by the Lower Court before it set aside the judgment. The rest of his arguments on the definition of what amounts to an interlocutory or final decision and the difference between the 2 would appear irrelevant in the circumstance of this appeal. He urged on the court to uphold the exercise of discretion by the Lower Court in the circumstance and resolve this issue in favour of the Respondent. He further urged on the court to dismiss this appeal and affirm the ruling of the Lower Court setting aside its judgment, as well as to remit the case in suit No. 1/148/2004 back to the Lower Court for hearing on the merit.
In resolving this issue, it is important to underscore some settled positions of the law on the issues under contention in this appeal. It is axiomatic that after its issue a writ of summons must be served on the Defendant. It is customary these days for both the writ of summons and the statement of claim to both be front loaded contemporaneously. The object of the service is 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, because without that service, he may not know that the plaintiff has sued him before a particular court.
Where service of a process is required, failure to serve it is a fundamental vice and the person 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. Further to that, service of a relevant court process is also a condition precedent to the exercise of jurisdiction by the court out of whose registry the writ of summons was issued. See SKENCONSULT VS. UKEY (1980) 1 SC 6 at 26 and NATIONAL BANK VS. GUTHRIE (1993) 4 SCNJ 1 at 17.
With respect to the facts and circumstances in the instant appeal, I wish to point out further to my earlier narrative, that all appeared to be well with respect to service of originating processes because the application of the Respondents filed on 5/12/05 was for extension of time to file their statement of defence. In its proceedings of 26/01/06, the only proceedings held after it was filed, the matter was adjourned to 23/2/2006 for mention. No reference was made at all to the filling and pendency of the motion for extension of time to file defence. No date for hearing of that motion was given in open court and order for hearing notice made for the proceedings of 23/2/06. It will definitely be strange and, in my humble view, improper for the same motion to be struck out on the 23/2/06. It will also be improper for the court to record as part of its proceedings of 23/2/06 that “Defendants’ counsel motion on notice have (sic) not been argued. This is the 2nd time the motion on notice will be called and the Defendant (sic) counsel will be absent. He asks for motion on Notice to be struck out” see page 36 of the record of appeal. This narrative in the proceedings is not supported or vindicated by the previous record. The Lower Court is a superior court of record under Section 6 (3) and (5) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. As a superior court of record it is always bound by its record. It must always be so bound. In my view the striking out of the motion for extension of time to file statement of defence was made without jurisdiction in the circumstance. It was wrong. It ought to have first of all been fixed for hearing with notice of that date being fully communicated to counsel and it is only upon the proof of such communication of date for hearing in open court and the failure of applicant to be present in court to argue it that would have enabled the Court to strike it out for want of diligent prosecution. There was no record of any counter affidavit filed against it or any indication in any other manner howsoever that learned counsel to the Plaintiff/Appellant would oppose the application for extension of time to file statement of defence. It would therefore amount to the Lower Court failing to afford the Respondents the opportunity to present the whole latitude or amplitude of their defence to the claim of the Appellant. In the circumstance, it would then also amount to a denial of the Respondents constitutionally guaranteed right to fair hearing. The effect of the application for the Appellant of leave to amend her statement of claim as set out in the schedule of amendment thereto was very fundamental and far reaching. This application in my view, apart from not having been duly and properly served as I observed herein above, judgment ought not to have made on it without the Respondents being heard or given the slightest opportunity of being heard. Added to all these, the affidavit in support of the application for extension of time to file statement of defence had deposed to very serious and strong averments in its paragraphs a (a) to (e) and 5.
Learned counsel to the Appellant had conceded to the view of the learned trial judge that it was within his discretion to set aside the judgment of 30/10/05. However, learned counsel had maintained that the discretion was not exercised judicially and judiciously.
Where a trial court is vested with a discretionary power to exercise, this court is always very reluctant to interfere with the exercise of that power, except where upon a complaint it was satisfactorily shown that the power was not exercised judicially and judiciously. In BIOCON AGROCHEMICALS (NIG) LTD & ORS VS. KUDU LTD & ANOR (2000) 15 NWLR (Pt.691) 493, (2000) LPELR – 784 (SC) the Supreme court decided that it is settled law that an appellate court will not generally interfere with the exercise of discretion by a Lower Court unless it is shown that there has been a wrongful exercise of the discretion. Where the Lower Court acted under a misconception of law or under a misapprehension of fact in that it either gave weight to irrelevant facts or it omitted to take into account matters that are relevant, or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to intefere.
Having looked at the entire circumstance of this matter, there is definitely some credence to the observations of learned counsel to the Appellant that the initial counsel engaged by the Respondents did not exhibit strong diligence in its handling. There was apparent lethargy and tardiness in their attitude.
It may necessarily have to be re-stated here for the umpteenth time by the courts, that a litigant in very appropriate circumstances must not be made to suffer for the mistake, incompetence wrong doing or other misdemeanours of his counsel.
With respect to the relevance or otherwise of Order 37 Rule 9 of the 1988 Rules of Oyo State High Court against Order 27 Rules 9 and 10, the learned trial judge was of the view that since pleadings have not been duly filed and exchanged, Order 37 rule 9 would not be applicable and the Respondents did not have to come to court within 6 days after the judgment was delivered against them. In distinguishing Order 37 Rule 9 and Order 27 Rules 9 and 10 at page 130 of the record of appeal, the learned trial judge observed and held thus:-
“It was the view of the Counsel to the Respondent that the application is incompetent on point of Law- Applicant’s counsel was of the view that since the pleadings have not been finalized, the section would not be applicable and that the applicant would not need to come to court within six days. I agree with the applicant counsel that where pleadings have been completed and trial stage have been reached setting aside such judgment must be made within six days as provided by the Rules Order 37 Rule 9 High Court of Oyo State 1988. But when the case has not reached a trial state before judgment was obtained, that is, judgment obtained in default of pleadings, as happened in the instant case, no time limit is described for the pleading of the application to set aside the judgment.”
In its ruling the Lower Court had without much hesitation come to a conclusion at page 128 of the record of appeal that it was wrong to presume knowledge of the writ of summons and amended statement of claim against the Defendants because the rules of court enjoin personal service at the initial stage. The learned judge added further that where a Defendant is not aware of a pending litigation because he was not served, the proceedings outside that will be null and void. He also found that the name of the 1st Defendant was omitted from the statement of claim of 22/2/2004 now at pages 3 to 6 of the record of appeal. As at that date the 1st Respondent on that process was called Mr. Segun Adesina. It was also the view of the learned trial judge, and this was his uppermost concern, that it was within his discretion to set aside his judgment under certain given circumstances and with respect to this matter because the Defendants/Respondents had appeared to him to have a genuine defence to the claim of the plaintiff/Appellant it would amount to a special circumstances to warrant setting aside the judgment in default of pleadings.
I have carefully considered the processes in this matter as transmitted to this court. I have also considered all the steps taken by the Lower Court towards giving the judgment in default of pleadings and its subsequent setting aside of same. I agree that the relevant rule of court that allows the Lower Court to proceed as it did was indeed Order 27 rules 6 (1) and 10 of the 1988 Rules of Oyo State High Court. The discretion to set aside a judgment under Order 27 Rule 10 belongs to the Lower Court it is not for this court to usurp it and exercise same on its behalf, except if it was shown to be perverse or unreasonable in its approach or attitude.
Though learned counsel to the Appellant had consistently maintained that the Lower Court failed to exercise its discretion judicially and judiciously because it did not consider relevant facts but relied on a misapprehension of those facts and consideration of irrelevant ones, I am unable to agree with him in that regard. After a total over view of the entire facts and circumstances, I cannot see any good reasons to fault the setting aside of the judgment delivered on 30/10/06.
This issue is therefore hereby resolved against the Appellant. Having thus resolved issues 1, 4 and 5 in the Appellant’s brief of argument, this appeal is hereby dismissed for being devoid of any merit. I therefore do not see any need to go into issue 2 as argued in the Appellant’s brief. In consequence of that, the ruling of the Lower Court delivered on 27/02/07 in Suit No. I/148/2004 is hereby affirmed.
Also, in consequence of dismissing this appeal and affirming the ruling of the Lower Court that led to this appeal and upon my observation and strong view that the Respondents’ motion for extension of time to file statement of defence filed on 5/12/2005 was wrongly struck out on 23/02/06 without any hearing at all is hereby restored and should be heard and determined on the merit. This matter is hereby remitted to the Honourable Chief Judge of Oyo State for re-assignment to another Judge of the High Court, other than W.K. Olaifa, J. for hearing de-novo. N50,000 costs against the Appellant in favour of the Respondents.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother Ali Abubakar Babandi Gumel, JCA obliged me a preview of his lead judgment just delivered. I entirely agree with the reasonings leading to the conclusion that the appeal lacks merit and should be dismissed.
Accordingly it is dismissed by me. The Ruling of the Lower Court delivered on 27/02/07 in Suit No. 1/148/2004 is affirmed.
I also order the restoration of the motion by the Respondents for extension of time to file statement of defence filed on 5/12/2005 wrongly struck out on 23/2/06 without hearing. Same should be heard and determined on the merit.
Consequentially therefore, this case is remitted to the Honourable, the Chief Judge of Oyo State for reassignment to another judge of the High Court, other than W.K. Olaifa J, for hearing de novo.
I award N50,000:00 cost against the Appellant and in favour of the Respondents.
NONYEREM OKORONKWO, J.C.A.: I have had a preview of the judgment of my lord Ali Abubakar Babandi Gumel JCA, and I agree entirely with the reasoning and orders made.
Whenever an application for amendment of a statement of claim or any Fundamental Process is made in the course of proceedings in a case, such application must be served on the defendant even if the defendant had deliberately kept away from the proceedings as in this case. A defendant may in his own discretion elect not to contest a case of which he (defendant) had been served. But whenever that case is to be altered by an amendment, that defendant must be served notwithstanding his apparent apathy or indifference. The reason is that there may be a feature in the proposed amendment which the “sloppy” defendant may now wish to defend or react to. Failure to serve him on the assumption that he (defendant) had hitherto been indifferent will render the entire proceeding incompetent and liable to be set aside as has happened in this case.
For the above reason and others ably advanced by my lord Gumel JCA, I too will and do dismiss this appeal.
Appearances
Mr. Kola AlabiFor Appellant
AND
Chief Adeniran AdetoyeFor Respondent
