OBASI & ORS v. FADEYI
(2020)LCN/15457(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, November 26, 2020
CA/E/20/2014
RATIO
WORDS AND PHRASES: FAIR HEARING
It is settled by a long line of cases that what fair hearing connotes is that all the parties in a matter brought before the Court for adjudication and those who are likely to be adversely affected by the outcome of the matter must be given equal opportunity to be heard before the Court. Where parties are given equal opportunity to be heard but failed to utilize it, they cannot complain of breach of the fair hearing principles. See UGWUYOK & ORS. V. OGBULU & ORS. (2019) LPELR-48741(SC) AT 13-19 (D-C), AYOADE V. STATE (2020) LPELR-49379(SC) AT 30-33 (F-A). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
COURT PROCESS: PRACTICE OF THE COURT WHERE THERE IS AN IRREGULARITY IN THE SERVICE OF ORIGINATING PROCESS
Where there is an irregularity in the service of the originating process, the party affected by the irregular service of the process must raise the issue timeously before taking any step in the matter. Where a party fails to complain about an irregularity in the service of the originating process and went on to participate in the proceedings, he is estopped from raising the issue on appeal. See CBN V. INTERSTELLA COMMUNICATIONS LTD. & ORS. (2017) LPELR-43940(SC) AT 107-110 (D-E). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
COURT PROCESS: SERVICE OF PRE-ACTION NOTICE
The clear position of the law is that service of pre-action notice is a personal right which inures only to the party entitled to the pre-action notice. Failure to serve pre-action notice is therefore an irregularity which can be waived by the party entitled to pre-action notice. See UGWUANYI V. NICON INSURANCE PLC (2013) LPELR-2009 (SC) AT 66-67 (B-A). Where a party fails to raise issue of non- service of pre-action notice at the trial Court, he has waived his right. The appellants having elected not to raise the issue of non-service of pre-action notice at the Court below, the appellants cannot be allowed to raise and canvass it at this stage. They waived their right to insist on being served with pre-action notice. See NNONYE V. ANYICHIE & 0RS. (SUPRA) AT 37-38 (D-C), MOBIL PRODUCING (NIG.) UNLTD. V. LASEPA (SUPRA), (2002) LPELR- 1887(SC) AT 18(D-E), NICON INSURANCE PLC V. ANAGBA VENTURES LTD. (2018) LPELR-46672(CA). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JURISDICTION: WHETHER AN ISSUE OF JURISDICTION CAN BE RAISED AT ANY STAGE OF THE PROCEEDINGS
It is trite law that an issue of jurisdiction can be raised at any stage of the proceedings even at the Supreme Court. It is also settled that an appellant need not obtain the leave of Court to raise an issue of jurisdiction that was not raised and canvassed at the Court below. There are legions of precedents on these two principles. There is no dispute regarding the entitlement of the appellants to be served with pre-action notice by virtue of Section 20(3) of the NIGERIA SECURITY AND CIVIL DEFENCE CORPS ACT, 2003 (as amended) which provides that:
(3) “No suit shall be commenced against a member of the Board or the Commander-General or any other officer or employee of the Corps before the expiration of a period of one month after written notice of intention to commence the suit shall have been served on the Corps by the intending plaintiff or his agent.”
It is glaring from the submissions of counsel that the bone of contention is about the appropriate time to raise the issue of non service of pre-action notice. The settled position of the Court is that though an issue of jurisdiction can be raised at any stage of the proceedings even at the Supreme Court. However, there is an exception to that general principle. Where the issue of jurisdiction is about a procedural defect in the commencement of the proceedings and such defect is dependent on ascertainment of facts, the party who alleges the defect has a duty to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons or by a motion on notice to the other party. In whatever manner he chooses to raise it, the issue must be raised at the trial Court. The issue of non service of pre-action notice cannot be said to arise on the face of the proceedings or the record of appeal before this Court. It is a question of fact which must be ascertained or settled by the trial Court based on the evidence before the Court. See OLOBA V. AKEREJA (1988) LPELR- 2583 (SC) AT 17-18 (F-D), NNONYE V. ANYICHIE & ORS. (2005) LPELR-2061SC) AT 34-45 (C-D). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
1. MR. POLYCAP OBASI 2. MR. DESMOND AGU 3. MR. AWGU 4. NIGERIA SECURITY AND CIVIL DEFENCE CORPS APPELANT(S)
And
MUJEEB FADEYI RESPONDENT(S)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court of Nigeria delivered in suit no. FHC/EN/CS/189/2009 on 23/4/2013. The respondent instituted the suit to enforce his fundamental rights guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The respondent’s case was that he was arrested, detained, striped naked to his pant, made to lie face down, beaten with sticks, gun butts, physical blows and other lethal weapons which led to one of his eyes going blind, his movable properties were seized and he was denied access to his family by the agents, servants or persons under the control of the 1st to 4th appellants at Emene and the 4th appellant’s office in Enugu. By a motion on notice filed on 24/7/2009 pursuant to the leave of Court granted to the respondent on 14/7/09, the respondent applied and sought declarations that the acts of appellants are contrary to the provisions of Sections 34(1) (a), 35(1), (4) and (5), 36 (6) (a), 37, 41(1) and 43 of the Constitution, N10 Million (Ten Million Naira) compensation and written apology from the respondents.
Pursuant to an exparte application filed by the respondent, leave was granted to serve the Court processes on the 1st – 3rd respondents by pasting same on the front door or other conspicuous part of the 4th respondent’s office at New Market, Enugu. On 20/10/2009 the respondent’s counsel informed the Court that the appellants had been served but there was no response from them. The matter was adjourned to 16/11/2009. There is no record of what happened on 16/11/2009. The record shows that when the matter came up on 27/1/2010, the appellants were absent but their counsel sent a letter to the Court and sought for an adjournment on the ground that he was sick. The matter was adjourned to 18/2/2010 for hearing. On 18/2/2010, the appellant’s counsel, O.J. NDUDIKWA (MISS) applied for an adjournment and her application was granted. On 21/7/2010, counsel to both parties were ordered to file their written addresses within two weeks and the matter was adjourned to 21/10/2010 for hearing. There is no record of what happened on 21/10/2010. There were two adjournments on record after that date. When the application was called for hearing on 5/3/2013, the respondent’s counsel argued the application without any objection from the appellants’ counsel. Upon the conclusion of the argument of the motion by the respondents’ counsel, the appellant’s counsel informed the Court that the appellants did not file any process. The Court then adjourned the matter to 23/4/2013 for judgment. On 23/4/2013, the appellants’ counsel informed the Court that she filed a process late the previous day, 22/4/2013 and that the respondent could not be served and the process was not before the Court. The Court delivered its judgment as scheduled. The Court held that the respondent established the infringement of his fundamental rights and awarded a sum of N2Million Naira in his favour and against the appellants jointly and severally.
The appellants being dissatisfied with the judgment filed a notice of appeal on 18/6/2013. An amended notice of appeal containing five (5) grounds of appeal filed on 30/1/2018 was deemed as properly filed and served on the same day.
The amended appellants’ brief of argument was filed on 16/2/2018. Amended respondent’s brief was filed on 8/3/218. Appellants’ reply brief was filed on 6/10/2010. It was deemed as properly filed and served on 14/10/20.
The appellant raised the following issues for determination:
1. “Whether or not the suit before the Court below against the appellants is competent, having failed to serve the appellants one month pre-action notice before initiating this action.
OR
Whether this honourable Court can set aside judgment of the lower Court delivered in this case in view of the fact that the appellants were not served with the pre-action notice as provided by law establishing them
2. Whether this honourable Court can set aside the judgment of the lower Court delivered in this case in view of the fact that the appellants were never served with any of the Court processes.
3. Whether the learned trial judge in the Court below was right or wrong when he misdirected itself (sic) procedurally by disregarding and refusing to consider the process of the appellants filed before judgment at the lower Court.
4. Whether the learned trial judge was right or wrong when he held that none of the appellants denied the allegation in the form of filing a counter affidavit even when the appellants were represented by counsel.
5. Whether or not the judgment of the trial Court on the whole is in conformity with the substantial justice.”
The issues raised by the respondent are the same with the appellants’ issues though couched in slightly different words.
On issue 1, the appellants’ counsel stated that the respondent failed to serve pre-action notice as required by Section 20(3) of the NIGERIA SECURITY AND CIVIL DEFENCE CORPS ACT, 2003 (as amended) on the appellants’ before instituting the suit at the Court below. He submitted that the respondent having failed, refused and neglected to serve pre- action notice on the appellants which is a condition precedent to the institution of the suit, the action is incompetent and the Court lacked the jurisdiction to entertain the suit. He referred to SHUAIBU V. NAICOM (2002) 12 NWLR (PT. 780) 116 AT 133 (E-F), MOBIL PRODUCING (NIG.) UNLTD. V. LASEPA(2002) 18 NWLR (789) 19 AT 30 (E-H).
In response, the respondent’s counsel argued that the appellants cannot raise the issues of service of pre-action notice and Court processes which they did not raise at the Court below in this Court without the leave of Court. He submitted that a fundamental right enforcement proceeding is a peculiar action and the Constitution does not provide for service of pre-action notice on anybody. He referred to BABARINDE V. OGUN STATE UNIVERSITY (2010) I CHR 156 AT 166 (A-C), ABIA STATE UNIVERSITY V. ANYAIBE (1996) 3 NWLR (PT.439) 646 (6).
RESOLUTION
It is trite law that an issue of jurisdiction can be raised at any stage of the proceedings even at the Supreme Court. It is also settled that an appellant need not obtain the leave of Court to raise an issue of jurisdiction that was not raised and canvassed at the Court below. There are legions of precedents on these two principles. There is no dispute regarding the entitlement of the appellants to be served with pre-action notice by virtue of Section 20(3) of the NIGERIA SECURITY AND CIVIL DEFENCE CORPS ACT, 2003 (as amended) which provides that:
(3) “No suit shall be commenced against a member of the Board or the Commander-General or any other officer or employee of the Corps before the expiration of a period of one month after written notice of intention to commence the suit shall have been served on the Corps by the intending plaintiff or his agent.”
It is glaring from the submissions of counsel that the bone of contention is about the appropriate time to raise the issue of non service of pre-action notice. The settled position of the Court is that though an issue of jurisdiction can be raised at any stage of the proceedings even at the Supreme Court. However, there is an exception to that general principle. Where the issue of jurisdiction is about a procedural defect in the commencement of the proceedings and such defect is dependent on ascertainment of facts, the party who alleges the defect has a duty to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons or by a motion on notice to the other party. In whatever manner he chooses to raise it, the issue must be raised at the trial Court. The issue of non service of pre-action notice cannot be said to arise on the face of the proceedings or the record of appeal before this Court. It is a question of fact which must be ascertained or settled by the trial Court based on the evidence before the Court. See OLOBA V. AKEREJA (1988) LPELR- 2583 (SC) AT 17-18 (F-D), NNONYE V. ANYICHIE & ORS. (2005) LPELR-2061SC) AT 34-45 (C-D). The submission of the appellants’ counsel that service of pre-action notice is a condition precedent for instituting a suit and that failure to comply with the requirement is a fundamental omission which renders an action incompetent is correct but only to the extent that the party entitled to the pre-action notice raises the objection timeously at the trial Court. See EZE V. OKECHUKWU & ORS. (2002) LPELR-1194 (SC) AT 17 (B-E), FEED & FOOD FARMS (NIG) LTD. V. NNPC (2009) LPELR- 1274 (SC) AT 29-30 (D-B). OJO & ANOR. V. NATIONAL PENSION COMMISSION AND ANOR. (2019) LPELR-47839 (SC) AT 15-18 (A-F). The clear position of the law is that service of pre-action notice is a personal right which inures only to the party entitled to the pre-action notice. Failure to serve pre-action notice is therefore an irregularity which can be waived by the party entitled to pre-action notice. See UGWUANYI V. NICON INSURANCE PLC (2013) LPELR-2009 (SC) AT 66-67 (B-A). Where a party fails to raise issue of non- service of pre-action notice at the trial Court, he has waived his right. The appellants having elected not to raise the issue of non-service of pre-action notice at the Court below, the appellants cannot be allowed to raise and canvass it at this stage. They waived their right to insist on being served with pre-action notice. See NNONYE V. ANYICHIE & 0RS. (SUPRA) AT 37-38 (D-C), MOBIL PRODUCING (NIG.) UNLTD. V. LASEPA (SUPRA), (2002) LPELR- 1887(SC) AT 18(D-E), NICON INSURANCE PLC V. ANAGBA VENTURES LTD. (2018) LPELR-46672(CA).
Even if the issue of non-service of pre action notice had been properly raised at the Court below, it cannot succeed in the face of the provisions of Section 46 (1) – (3) of the Constitution which provides that:
“46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
(2) Subject to the provisions of this Constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that State of any right to which the person who makes the application may be entitled under this Chapter.
(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.”
An action for the enforcement of Fundamental Rights guaranteed by the Constitution of the Federal Republic of Nigeria 1999 (as amended) is in a special class of its own. That is why it is governed by a special procedural rules made by the Chief Justice of Nigeria pursuant to Section 46 (3) of the Constitution. Section 46(1) of the Constitution gives any person who alleges that any of the provisions of Chapter IV of the Constitution has been, is being or likely to be contravened in relation to him the right to apply to a High Court in the State for redress immediately without any inhibition under any law. The necessity to prevent an infringement of fundamental rights or seek redress for an infringement of the fundamental rights guaranteed by the Constitution overrides the necessity for service of pre-action notice. See UMUAHIA CAPITAL DEVELOPMENT AUTHORITY V IGNATIUS & ANOR. 2015 (CA) 24910 AT 19-22 (A-B). Based on the foregoing, issue 1 is resolved against the appellants.
On issue 2, the appellants’ counsel submitted that no Court processes including the originating process were served on the appellants at the national headquarters of the 4th respondent as stipulated by Section 21 of the NIGERIA SECURITY AND CIVIL DEFENCE CORPS ACT (as amended). He argued that failure to serve the Court process as required by law even if their counsel appeared in the matter renders the judgment liable to be set aside. He referred to NEPA V. URUAKPA (2011) ALL FWLR (PT.566) 476 AT 496(B-C).
In response, the appellants’ counsel argued that the appellants counsel cannot complain of improper service of processes when he appeared and participated in all proceedings leading to judgment. He referred to NBC PLC V. UBANI (2014) 4 NWLR (PT.1384) 421 AT 449(C-E).
In his reply, the appellants’ counsel submitted that failure to serve the originating processes on the appellants is fatal to the jurisdiction of the Court. He referred to BRIGADIER GENERAL REMAWA (RTD) V. NACB CONSULTANCY & FINANCE COY. LTD. (2006) LPELR-7606(CA), PEUGEOT AUTOMOBILE (NIG) LTD. & ANOR. V. LAWAL ABUBAKAR (2016) LPELR- 41602 (CA). He argued that the appearance of the appellants’ counsel does not amount to waiver of the right to challenge the jurisdiction of the Court at this stage. He referred to EZOMO V. OYAKHIRE (1985) 1 NWLR (PT.2) 195, NBN V. GUTHRIE (1993) 4 SCNJ 1, (1993) 3 NWLR (PT.284) 643.
RESOLUTION
Section 21 of the NIGERIA SECURITY AND CIVIL DEFENCE CORPS ACT, 2003 (as amended) provides that:
21. Service of documents
“A notice, summons or other document required or authorised to be served on the Corps under the provisions of this Act or any other enactment or law may be served by delivering it to the Commandant-General or by sending it by registered post and addressed to the Commandant-General at the principal office of the Corps.”
It is on record that the 1st – 3rd appellants were served by substituted service at their office in Enugu. It is glaring that the service of the Court processes at the 1st -3rd appellants’ office in Enugu was not in conformity with the provisions of Section 21 of the NIGERIA SECURITY AND CIVIL DEFENCE CORPS ACT, 2003 (as amended). The law is trite that proper service of Court processes particularly the originating process is a condition precedent for the exercise of the Court’s jurisdiction. However, irregularity in the service of Court process can be waived. See CGG (NIG.) LTD. V. AMINU (2015) LPELR-24463(SC) AT 26 (A-B) where the Supreme Court per AKA’AHS, J.S.C stated an instance where an irregular service of Court process may be waived as follows:
“If there was irregular service of the Writ, e.g. where the service is effected on the Branch Office and not the headquarters of the company or where the service is done on an employee and not a principal officer of the company, the irregular service can be waived.”
Where there is an irregularity in the service of the originating process, the party affected by the irregular service of the process must raise the issue timeously before taking any step in the matter. Where a party fails to complain about an irregularity in the service of the originating process and went on to participate in the proceedings, he is estopped from raising the issue on appeal. See CBN V. INTERSTELLA COMMUNICATIONS LTD. & ORS. (2017) LPELR-43940(SC) AT 107-110 (D-E). The argument of the appellants’ counsel that the appearance of the appellants’ counsel does not amount to waiver of the right to challenge the jurisdiction of the Court at this stage is wrong. The appellants having fully participated in the proceedings at the Court below through their counsel without raising the irregularity in the service of the Court processes cannot turn around after judgment was entered against them to complain of the irregularity in service on appeal. In law, it is too late for the appellants to complain, they have waived their right. In any case, the essence of service of Court process is to afford the affected party a fair hearing and adequate opportunity to present his own side of the case. The appellant had that opportunity in abundance. Therefore, it cannot be said that the irregularity in the service of the Court processes on the 1st -3rd appellants occasioned a miscarriage of justice. Issue 2 is resolved against the appellants.
On issues 3, 4 and 5, the appellants’ counsel alleged that the Court below refused to hear the appellants’ application for extension of time to file their counter affidavit and went ahead to deliver its judgment. He submitted that the failure or refusal of the Court below to hear and determine the appellants’ application for extension of time constitutes a denial of fair hearing as the law is trite that the Court is bound to hear and determine any application brought before it no matter how foolish the application is. He referred to F.U.T.A. V.OSEMENAN (2011) 31 WRN 148 AT 155(8). He argued that the failure of the Court to hear the appellant’s application robbed the Court of the jurisdiction to entertain the suit.
In response, the respondent’s counsel submitted that the appellants applied for two weeks to file their process on 21/7/2010 but did not file the process until 23/4/2013, the date fixed for judgment. He further submitted that the action of the appellants was calculated to hinder due administration of justice and the Court below was right to have delivered its judgment. He referred to UKACHUKWU V. PDP (2014) 4 NWLR (PT.1396) 65 AT 86.
RESOLUTION
Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that:-
“36 (1) – In the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
It is settled by a long line of cases that what fair hearing connotes is that all the parties in a matter brought before the Court for adjudication and those who are likely to be adversely affected by the outcome of the matter must be given equal opportunity to be heard before the Court. Where parties are given equal opportunity to be heard but failed to utilize it, they cannot complain of breach of the fair hearing principles. See UGWUYOK & ORS. V. OGBULU & ORS. (2019) LPELR-48741(SC) AT 13-19 (D-C), AYOADE V. STATE (2020) LPELR-49379(SC) AT 30-33 (F-A). As earlier stated, the appellants were given two weeks from 21/7/2010 to file their process. The appellants did not file their process until the matter was heard on 5/3/2013. At page 66 of the record of appeal, the appellants’ counsel merely informed the Court that the appellants did not file any process after the respondent’s counsel had argued the matter. The appellants’ counsel did not indicate any intention to file any process. The Court adjourned the matter to 23/4/2013 for judgment. The appellants had about 32 (thirty two months) between 21/7/2010 and 5/3/2013 when the matter was heard to file their process but failed to do so. Between 20/10/2009 when the appellants’ counsel first appeared in the matter and 5/3/2013 when the matter was heard, the appellants had about 44 months to file their process or raise objection to the irregularity in the service of the process on them. They failed to take either of the two steps. From the facts of this case, it is very clear that the appellants were given adequate opportunity by the trial judge to present their case but they failed and neglected to avail themselves of the opportunity. From the facts on record, it is glaring that the appellants’ counsel is not a serious and diligent counsel. The attitude of counsel is not only contemptuous of the Court, it is a total disregard for the administration of justice. Rather than utilize the opportunity they had to file the appellants’ process, counsel indulged in delay and contemptuous tactics aimed at preventing the Court from delivering the judgment. The complaint of lack of fair hearing by the appellants is a gross abuse of the principle of fair hearing which must not be tolerated by this Court. On similar facts, the Supreme Court per MUHAMMAD, J.S.C. held as follows in EZE V. FRN (2017) LPELR-42097(SC) AT 44-46 (A-A):
“It is difficult for me to decipher why the learned counsel for the appellant was raising such dust all around the principle of fair hearing. It is not however surprising. There have been precedence. In the case of Newswatch Communication Ltd. v. Atta (2006) All FWLR (PT. 318) 580 at 600-601, Tobi, JSC (Rtd and now late) reiterated the well laid down principle: “Counsel quite a legion, find the fair hearing principle duly entrenched in the Constitution as a pathway to success whenever they are in trouble on the merits of the case before the Court. Some resort to it as if it is a magic wand to cure all ills of the litigation. A good number of counsel resorts to the principle even when it is inapplicable in the case. The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. This will be injustice.” Belgore, JSC, (as he then was) concurring warned that the Court is not a slave of time that must await for a party to decide when to come and present its case. I think in this case, the trial Court did the best it could. There was no application by the appellant for adjournment to enable his counsel put-up appearance and no communication from the learned counsel for that. The doctrine of fair hearing/trial as stated by Belgore and Tobi, JJSC (with the former as he then was) in the case of Newswatch Communications Ltd. v. Attah (supra) is not a one-way traffic but two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both the appellant and the respondent. It is a two-edged sword to the plaintiff to be heard timeously and for the defendant to avail itself of the rights, constitutional rights extended to it by the Court to present its side of the case. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.”
In applying the principles of fair hearing, the Court has a duty to balance the scale of justice between the competing interests of the parties so as to do justice between them. The principle of fair hearing is not a one-way traffic meant for the benefit of a party who arrogantly feels the Court must wait for him to the detriment of the other party.
When the matter was called up for judgment on 23/4/2013, the appellants’ counsel informed the Court that the appellants filed their processes the previous day which was 22/4/2013. He confirmed the fact that the processes were not before the Court and had not been served on the respondent’s counsel. Thus neither the Court nor the respondent saw or had any process filed by the appellants before and as at the time that the judgment was delivered. I will be stating the obvious by saying that the appellants’ counsel could not seriously have expected the Court to adjourn the delivery of the judgment based on his statement that he filed a process the previous day. The Court is forbidden from relying on a document not placed before it. See EDIRU V. F.R.S.C & ORS (2015) LPELR-24790(CA) AT 29 (D-E). The Court has no magical power to know the existence of a document which may have been filed but which is not in the Court’s file. The Court was right to ignore the statement of the appellants’ counsel that a process was filed the day before the judgment. The submission of the appellants’ counsel that the Court erred in disregarding and refusing to consider the appellants’ process is totally misconceived and mischievous. The record at page 67 reads as follows:
“Parties absent
Ndudikwa O. J: Respondents.
Mrs. Ndudikwa: we are sorry to have filed our process late yesterday. I learnt that same is not before the Court. We couldn’t have served the other side. It can’t be ripe for hearing. The business of the day is judgment.”
It is clear on the face of the process at pages 39-50 of the record that the process was filed on 23/4/2013, the day the judgment was delivered contrary to the statement of the appellants’ counsel that they were filed the previous day. There is nothing to show that the process had even been filed at the time the Court delivered the judgment. The statement of the appellants’ counsel that the process was filed the day before the judgment was delivered was an attempt to frustrate the delivery of judgment which the Court below rightly resisted. Issues 3, 4 and 5 are resolved against the appellants.
I have carefully perused the grounds of appeal and the amended appellants’ brief. The appellants merely raked up all sorts of procedural irregularities but nothing against the substance of the judgment.
In conclusion, I hereby find that this appeal totally lacks merit. It is hereby dismissed. The judgment of the Federal High Court of Nigeria, sitting at Enugu delivered in suit no. FHC/EN/CS/189/2009 on 23/4/2013 by M.L. SHUAIBU, J., is hereby affirmed. There shall be N100,000:00 (One Hundred Thousand Naira) costs in favour of the respondent against the appellants.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I accordingly dismiss it.
I adopt the consequential orders in the lead judgment as mine.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, Misitura Omodere Bolaji-Yusuff, JCA just delivered. I am in total agreement with the decision reached and the reasoning behind the decision.
My learned brother in the lead judgment considered in detail all issues fundamental to the determination of the appeal before arriving at the conclusion that it totally lacks merit.
For the above reason and of course the detailed ones adumbrated in the lead judgment, I too hold that the appeal lacks merit. Same is equally dismissed. I abide by the order as to cost made in the lead judgment.
Appearances:
S. N. Ekoh Senior Principal Officer and Prosecutor, Nigeria Security and Civil Defence Corps For Appellant(s)
Olu Omotayo For Respondent(s)
