OLUDAYO v. STATE (2020)

OLUDAYO v. STATE

(2020)LCN/15478(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/AK/169MC/2020(R)

RATIO

COURT PROCESSES: RELEVANCE OF THE SERVICE OF HEARING NOTICE ON PARTIES

The law is well established that, service of hearing notice on parties, other than in “ex parte” proceedings, is very fundamental in adjudication process. Hence, failure to give notice of proceedings to any of the parties in a suit/appeal renders such proceedings void. For when any of the parties is not given notice of proceedings, the Court would have no jurisdiction to entertain same. See the cases of: (1) Obimonure v. Erinosho (1966) 1 ANLR P. 250; (2) Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) P. 941 and (3) Darma v. Eco Bank (2017) LPELR-41663 (SC). On this subject, in the case of: Michael & Ors. v. Bank of the North (2015) LPELR-24690 (SC) Akaah’s, JSC Rtd. had the following to say:

COMPETENCE OF COURT: WHETHER A Court caN revisit its decision by giving a second decision

As rightly submitted by the Respondent’s learned Counsel, ordinarily, the law is quite trite that, after delivering a decision including the making of an order in a matter, the Court becomes “functus officio”. The Court cannot therefore revisit its decision by giving a second decision, except under the “slip rule” to make corrections for clerical or secretarial mistakes or errors arising from any accidental omissions. The decisive final order of the Court is thus sacrosanct and can only be corrected by a superior Court. See the cases of: (1) Onwuchekwa v. Co-operative & Commerce Bank Plc. (1999) 5 NWLR (Pt. 603) p. 409; (2) Peter Chieshe & Anor. v. NICON Hotels Ltd. & Anor. (2007) All FWLR (Pt. 388) p. 1152 at p. 1163, paras. G-H and (3) FRCN & Anor. v. Iwuoha (2012) LPELR-14807 (CA).
To put it in other words, it is the general principle of law that this Court is not permitted to set aside its judgments, rather an appeal shall lie from such decisions to the Supreme Court for review under Section 233 of the 1999 Constitution. Nonetheless, this Court, can set aside its judgment, in appropriate cases, when certain things are shown. Moreover, an order of the dismissal of a suit for want of prosecution, not constituting “res judicata” because the issues in controversy had not been determined to finality by the Court of trial, in very exceptional circumstances may be reviewed upon an application brought to have such suit relisted. See the cases of: (1) Udo & Ors. v. Obot & Ors. (1989) 1 NWLR (Pt. 95) p. 59 at p. 721 (2) Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) p. 561; (3) Hi-Flow Farm Industries Ltd. v. University of Ibadan (1993) 4 NWLR (Pt. 290) p. 719 at p. 737; (4) Obasi Bros. Co. Ltd. v. Merchant Bank of Africa Securities Ltd. (2005) 9 NWLR (Pt. 929) p. 117 at p. 129, paras. E-G. The law is thus fairly settled that a previous judgment given by a Court can be set aside by the same Court in clear cases of lack of jurisdiction or fraud. In order that fraud may be a ground for vacating the judgment, it must be a fraud that is extrinsic or collateral to everything that has been adjudicated upon but not one that has been or must have been deemed to have been dealt with by the Court. See the case of: Flower v. Lloyd (1879) 10 Ch.D. p. 327. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

OBIJOLE OLUDAYO APPELANT(S)

And

THE STATE RESPONDENT(S)

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This application dated and filed on the 10th of July, 2020 is for the order of this Court relisting criminal appeal No. CA/AK/61CA/2019 which was dismissed for want of diligent prosecution by this Court on the 6th of July, 2020.

The grounds upon which the application is predicated are as follows:
“i. The Appellant’s Counsel was not served Hearing Notice or called on phone or through his mail as indicated on the processes filed before this Court.
ii. The Bailiff of this Court mistakenly served Hearing Notice on Address which has never been used on any Appellant’s processes filed before this Court.
iii. The Address for service contained on Hearing Notice was copied from Exhibit “A” attached to Motion on Notice dated 14th May, 2019 already granted by this Court.
iv. The interest of justice and fair hearing will be served.”

The application is supported by an affidavit of five paragraphs deposed to by Olajide Italoye, a legal practitioner in Goodwill Law Firm of the Applicant’s Counsel. Annexed to the affidavit are three documents marked Exhibit D1, Exhibit D2 and Exhibit D3. Exhibit D1 is a previous correspondence between the Applicant’s Counsel and the Registrar of this Court in the matter of the Applicant’s previous appeal, the subject of this application, before it was dismissed. Exhibit D2 is a copy of the hearing notice allegedly served on the Applicant’s Counsel at a wrong address. Exhibit D3 is a copy of the original notice of appeal in the dismissed Appeal No. CA/AK/61CA/2019 filed on the 4th of July, 2018. The paragraphs relevant to the crux of this application are paragraphs 4(a) to (r) and same are hereunder reproduced for good grasp and understanding as follows:
“4. That I was informed by Omotayo Olofinbinu of Counsel to the Appellant in our office on 9th July, 2020 at about 2:00pm in our office address stated above and I verily believed (Sic) him as follows:
(a) that Appellant’s motion for Amendment of Notice of Appeal dated 14th May, 2019 was moved and granted by this Court on 26th September, 2019.
(b) that the Appellant was allowed 15 days by this Honourable Court within which to file and served his Amended Notice of Appeal starting from 26th September, 2019.
(c) that the Appellant’s Counsel wrote a letter asking for a date to mention the Appeal after filling his Amended Notice of Appeal within the 15 days allowed (A copy of the said letter is herewith attached and marked as Exhibit “D1”)
(d) that the Registry of this Court promised to get back to the Appellant’s Counsel through Hearing Notice in order to know new date.
(e) that the Appellant’s Counsel visited the Registry of this honourable Court during the Lockdown to know when the Court will sit over the matter, but no date was issued to him.
(f) that on 7th July, 2020, the Appellant visited the Registry of this Court to know the new date fixed for it.
(g) that the Appellant’s Counsel was informed that this Honourable Court had dismissed the Appeal on 6th July, 2020 for want of Diligent Prosecution.
(h) that the Appellant’s Counsel is (Sic) neither served Hearing Notice nor called on his phone nor reached through his mail.
(i) that the Registry of this Court claimed that Appellant’s Counsel had been duly served with the Hearing Notice.
(j) that a closer look at certified true copy of the Hearing Notice reveals that it was served at the old address of the Appellant’s Counsel (A copy of said Hearing Notice is herewith attached and marked as Exhibit “D2”).
(k) that a further look at the face of Hearing Notice shows that it was served on one “David Olanrewaju” which the Appellant’s Counsel did not know.
(l) that the Appellant has never used the said “Old Address” for filling any process at the Registry of this Court.
(m) that the Registry of this Court mistakenly copied the “Old Address” from Exhibit “A” attached to the Appellant’s motion for Amendment of Notice of Appeal dated 14th May, 2019 that already been granted. (A copy of the said Exhibit “A” herewith attached and marked as Exhibit “D3”)
(n) that when the Appeal came up on 6th July, 2020 the Appellant’s Counsel was not present in the Court, this resulted into the dismissal of this appeal.
(o) that it is not the intention of the Appellant’s Counsel to threat (Sic) this Court with a disdainful act by refusing to attend proceeding.
(p) that the occasion which resulted in the dismissal of the Appeal is not an act of the Appellant’s Counsel.
(q) that the Appellant’s Counsel shall immediately do the needful if this Court grants this application and allow this Appeal to return to the cause list.
(r) that it will be in the interest of justice and fair hearing if this Court set aside its ruling dated 6th July, 2020 and allow this Appeal to go on.”

The Respondent is contesting the application and to this effect, a counter affidavit of six paragraphs was filed on the 27th of July, 2020. The counter affidavit was deposed to by Bukola Afolabi, a Litigation Clerk in the Department of Public Prosecutions, Ministry of Justice, Ondo State, Counsel for the Respondent. Relevant to the application are paragraph 4(a) to (h) of the counter affidavit hereunder reproduced as follows:
“4. That I was informed by Olatubosun Bosun-Kwadjo Esq., on the 27th day of July, 2020 at about 11:00 am at our office at the above address and I verily believe him that:
a. The first Notice of Appeal by the Applicant was dated and filed on the 4th of July, 2018.
b. The Applicant by way of notice of motion dated the 14th of May, 2019 and filed the 15th day of May, 2019 sought among many prayers to amend the Notice of Appeal dated and filed on the 4th day of July, 2018.
c. This honourable Court granted the motion of the Applicant to amend his Notice of Appeal on the 26th day of September, 2019.
d. This honourable Court through the Registry fixed the 6th day of July, 2020 for hearing of the suit.
e. The suit with appeal no. CA/AK/61CA/2019 was struck out for want of diligent prosecution by Appellant’s Counsel on the 6th of July, 2020.
f. The Applicant filed a notice of motion on the 10th of July, 2020 seeking to relist the suit (Sic) with (Sic) appeal no. CA/AK/61CA/2019.
g. When this notice of motion came up for hearing on the 22nd day of July, 2020, at the last date of hearing, Counsel on both sides were directed to file written addresses by this honourable Court.
h. Consequent upon the above, the Respondent’s Counsel has duly prepared, filed and served a written address to reflect this honourable Court’s directive. The said written address is before this Court.” Consequent upon the contentious nature of the application, parties’ Counsel were ordered to file Written Addresses in substantiation of their varied positions in the application. Hence, on the 4th of November, 2020 when the application came up for hearing before this Court, the Written Addresses already duly filed for the respective parties were adopted and relied upon by their Counsel in urging upon this Court to find for their respective opposing stances.

The lone issue formulated for determination in the Written Address in support of the application dated 27th of July, 2020 filed on 28th of July, 2020 reads thus:
“Whether having regard to the Applicant’s Motion on Notice and the supporting Affidavit, this Court ought to grant the Applicant’s prayer in the interest of justice?”

In the Written Address of the Respondent dated and filed on 27th of July, 2020, the following sole issue was donated for determination viz:
“Whether or not this Court has the jurisdiction to relist appeal no. CA/AK/61CA/2019 after same was dismissed for want of diligent prosecution?”

I consider the issue donated by the Respondent more apt and will therefore adopt same in the resolution of the application. The submissions in the Written Address of the Applicant’s Counsel in support of the application are directly in respect thereto and will of course be duly considered as well, the Applicant being the aggrieved party herein.

THE SUMMARY OF THE SUBMISSIONS OF THE APPLICANT’S COUNSEL:
This Court has the discretional power to grant the Applicant’s application. The guide for this kind of application are:
(a) whether the Applicant had good reasons for being absent at the hearing?
(b) whether he has shown that there was good reason for his delay in bringing the application?
(c) whether the Respondent will not be prejudiced or embarrassed if the order for rehearing was made?”
See the cases of: (1) N.N.S.C. v. E.S.V. (1990) 7 NWLR (Pt. 164) p. 526 and (2) Alli v. N.U.C. (2019) All FWLR (Pt. 972) p. 355 at p. 373. Applicant’s Counsel was not served with hearing notice as Exhibit D2 was not served on the Applicant’s Counsel’s address at No. 75B, Hospital Road, Akure, Ondo State. If this application is granted, the Respondent will not be prejudiced in any way, rather it will result in ensuring that all parties are given fair hearing in the substantive matter. See the case of: Nwaoha v C.O.P. (2019) All FWLR (Pt. 988) p. 1114 at p. 1131, paras. D-E.

It is abundantly clear that the “old” address which was on Exhibit D3 was erroneously quoted on Exhibit D2 as address for service by the Registry of this Court, this prevented the Applicant’s Counsel from attending the proceedings of 6th July, 2020 and consequently led to the dismissal of Appeal No. CA/AK/61CA/2019. This Court should not punish the Applicant for the erroneous act of this Court’s Registry. See the case of: Wassah v. Kara (2015) All FWLR (Pt. 769) p. 1034 at p. 1063 (SC), para. C.

THE SUMMARY OF THE SUBMISSIONS OF THE RESPONDENT’S COUNSEL:
The Respondent’s Counsel contended that both the Court of Appeal Rules, 2016 and Court of Appeal Act, 2004 do not make any provision for the relisting of an appeal dismissed in the circumstances as presented in the instant case. See the cases of:

(1) Chukwuka v. Ezulike (1986) 5 NWLR (Pt. 45) p. 892; (2) Olowu v. Abolore (1993) 5 NWLR (Pt. 293); (3) Jideonwo v. Chukwuma (2000) NWLR (Pt. 641) p. 397 at p. 406 and (4) Chime v. Ude (1996) 7 NWLR (Pt. 461) p. 379.

In particular, in the case of: Chime v. Ude (Supra), the Court held that it has no jurisdiction to re-enter an appeal which has been dismissed for want of diligent prosecution, since under such circumstances, the dismissal is final. For an Appellant who fails and or refuses to file his brief of argument can be regarded, treated or deemed as having abandoned his appeal and the same shall be dismissed for want of diligent prosecution as in the instant case. Like an action which is statute barred, the situation or position is irredeemable or implacable.

It is also well settled in law, that the exercise of appellate jurisdiction is statutory. A Court cannot therefore exercise jurisdiction to hear an appeal unless such jurisdiction is conferred by the Constitution or some enabling statute. In the instant case since there is no statutory provision for the relisting of a previously dismissed appeal, the present applicant’s application amounts to an abuse of Court process. This Court must thus hold so and dismiss the application.

RESOLUTION
The background facts of this application are rooted in the proceedings of this Court on the 6th of July, 2020 in Appeal No. CA/AK/61CA/2019. The appeal was slated for hearing on the said date. At the hearing, parties and their respective Counsel were absent from the Court, although according to the Registrar of this Court, hearing notices were served on the Counsel for the parties. The antecedents of the appeal as contained in the proceedings of that day are that, although the original Notice of Appeal of the Applicant herein was filed on the 7th of July, 2018, no step was taken to actively prosecute the appeal until the Applicant was prompted by the Registry of this Court. Hence, sequel to the prompting, the Applicant filed a motion on notice about one year after the original Notice of Appeal was filed to regularize the Record of Appeal which had been compiled and transmitted albeit out of time and for leave to amend the said original Notice of Appeal of the Applicant. The motion not opposed by the Respondent was moved and granted. The Record of Appeal as well as the Amended Notice of Appeal were deemed properly compiled, transmitted, filed and served on the 26th of September, 2019.

The Applicant again went back to sleep and failed to file the Appellant’s brief of argument within the statutory period set by the Rules of this Court. The Registry of this Court therefore prompted the Appellant once again, about ten months after his Amended Notice of Appeal and Record of Appeal had been deemed properly filed, by a notice for the hearing of the appeal dated 30th of June and purportedly served on his Counsel on the 2nd of July, 2020. It is the address contained in the said notice of hearing that the Applicant is contesting in the instant application. As hereinbefore stated, on the 6th of July, 2020 when the appeal was scheduled to be heard, the Applicant and his Counsel were absent from the Court. The contention therefore of the Applicant is that, the said hearing notice of 30th of June, 2020 was issued to a wrong address, that is, the old address of the Applicant’s Counsel, served on and received by a person unknown to the Applicant. To put it in other words, the Applicant has claimed that neither he nor his Counsel was served with hearing notice to be in Court on the 6th of July, 2020 when his appeal was dismissed.

It is pertinent to state at this juncture that, under the provision of Order 19 Rule 2 of the Court of Appeal Rules, 2016, an appellant shall within forty-five days of the receipt of the Record of Appeal from the Court below file in this Court a written brief, being a succinct statement of his argument in his appeal. As noted above, the Record of Appeal in the dismissed appeal was deemed duly compiled and transmitted on the 26th of September, 2019. Thus on the 6th of July, 2020 when the said appeal was dismissed, the Applicant was out of time by about ten months in filing his Appellant’s brief of argument.

As stated at the introduction of this decision, the application under consideration is for an order of this Court that Appeal No. CA/AK/61CA/2019 dismissed on the 6th of July, 2020, be relisted so that it can be heard on its merits. By the provisions of the Rules of this Court, generally, there is a prohibition of relistment of a matter determined with finality. I refer to Order 20 Rule 4 of the Court of Appeal Rules, 2016, which provides as follows:
“4. The Court shall not review any judgment once given and delivered by it, save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative substantive part of it be varied and a different form substituted.”
The authors of Black’s Law Dictionary, 8th Edition at page 503 have defined the phrase, “dismissed for want of prosecution” as: “(of a case) removed from the Court’s docket because the plaintiff has failed to pursue the case diligently toward completion.” In the instant matter, what the learned Counsel for the Applicant wants this Court to do is to set aside its earlier decision, that is, its order made on the 6th of July, 2020 dismissing the former appeal of the Applicant.
As rightly submitted by the Respondent’s learned Counsel, ordinarily, the law is quite trite that, after delivering a decision including the making of an order in a matter, the Court becomes “functus officio”. The Court cannot therefore revisit its decision by giving a second decision, except under the “slip rule” to make corrections for clerical or secretarial mistakes or errors arising from any accidental omissions. The decisive final order of the Court is thus sacrosanct and can only be corrected by a superior Court. See the cases of: (1) Onwuchekwa v. Co-operative & Commerce Bank Plc. (1999) 5 NWLR (Pt. 603) p. 409; (2) Peter Chieshe & Anor. v. NICON Hotels Ltd. & Anor. (2007) All FWLR (Pt. 388) p. 1152 at p. 1163, paras. G-H and (3) FRCN & Anor. v. Iwuoha (2012) LPELR-14807 (CA).
To put it in other words, it is the general principle of law that this Court is not permitted to set aside its judgments, rather an appeal shall lie from such decisions to the Supreme Court for review under Section 233 of the 1999 Constitution. Nonetheless, this Court, can set aside its judgment, in appropriate cases, when certain things are shown. Moreover, an order of the dismissal of a suit for want of prosecution, not constituting “res judicata” because the issues in controversy had not been determined to finality by the Court of trial, in very exceptional circumstances may be reviewed upon an application brought to have such suit relisted. See the cases of: (1) Udo & Ors. v. Obot & Ors. (1989) 1 NWLR (Pt. 95) p. 59 at p. 721 (2) Igwego v. Ezeugo (1992) 6 NWLR (Pt. 249) p. 561; (3) Hi-Flow Farm Industries Ltd. v. University of Ibadan (1993) 4 NWLR (Pt. 290) p. 719 at p. 737; (4) Obasi Bros. Co. Ltd. v. Merchant Bank of Africa Securities Ltd. (2005) 9 NWLR (Pt. 929) p. 117 at p. 129, paras. E-G. The law is thus fairly settled that a previous judgment given by a Court can be set aside by the same Court in clear cases of lack of jurisdiction or fraud. In order that fraud may be a ground for vacating the judgment, it must be a fraud that is extrinsic or collateral to everything that has been adjudicated upon but not one that has been or must have been deemed to have been dealt with by the Court. See the case of: Flower v. Lloyd (1879) 10 Ch.D. p. 327. The contention of the Applicant’s Counsel herein is that he was not properly served with hearing notice for the hearing of the Appeal No. CA/AK/61CA/2019 on the 6th of July, 2020. Hearing Notice is a document that emanates from the Registry of a Court giving legal notification to the parties or their Counsel in a suit/appeal of the dates on which the suit/appeal would be heard. Once therefore a party or his Counsel is served Hearing Notice, they are both deemed to have actual knowledge of the date the suit/appeal would be heard, and if such a party or his Counsel decides to stay away from Court, he does so at his own peril. The law is well established that, service of hearing notice on parties, other than in “ex parte” proceedings, is very fundamental in adjudication process. Hence, failure to give notice of proceedings to any of the parties in a suit/appeal renders such proceedings void. For when any of the parties is not given notice of proceedings, the Court would have no jurisdiction to entertain same. See the cases of: (1) Obimonure v. Erinosho (1966) 1 ANLR P. 250; (2) Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) P. 941 and (3) Darma v. Eco Bank (2017) LPELR-41663 (SC). On this subject, in the case of: Michael & Ors. v. Bank of the North (2015) LPELR-24690 (SC) Akaah’s, JSC Rtd. had the following to say:

“Where therefore the steps taken by a Court in the course of its proceedings amount to serious procedural irregularity, the mistake or error will render the proceedings a nullity and accordingly its judgment in that respect will be of no legal effect and the inherent power of the Court to set aside a judgment that is palpably a nullity could be invoked by a motion or an application by the party affected by the order. See the cases of: (1) Ndigwe v. Nwude (1999) 11 NWLR (Pt. 626) p. 315 at p. 339 and (2) Ezeokafor v. Ezeilo (1999) 9 NWLR (Pt. 619) p. 513 at p. 530.”
See also the cases of: (1) Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) LPELR-3072 (SC) and (2) Ugba & Anor. v. Suswam & Ors. (2014) LPELR-2882 (SC).
I have scrutinized the affidavit evidence of the Applicant, particularly Exhibit “D1” annexed to the supporting affidavit which clearly states the current address of the Applicant’s Counsel in his very recent correspondence with the Registrar of this Court on the 25th of March, 2020. The said address is patently at variance with the address contained in Exhibit “D2” the certified true copy of the Notice of Hearing dated the 30th of June, 2020 purportedly served on the Applicant’s Counsel on the 2nd of July, 2020 and upon which the decision of this Court dismissing the earlier appeal of the Applicant was based. This in my view constitutes a serious procedural irregularity and error which have rendered null the proceedings leading to the decision of this Court on the 6th of July, 2020 dismissing Appeal No. CA/AK/61CA/2019 for want of prosecution. I therefore hold that the said decision is of no legal effect and liable to be set aside under the inherent jurisdiction of this Court.

Consequent upon the foregoing, I hold that the instant application of Applicant is imbued with merits and same is accordingly granted as prayed.

Concomitantly, I hereby set aside the earlier order of this Court made on the 6th day of July, 2020 dismissing Appeal No. CA/AK/61CA/2019.

I therefore order the relistment and restoration of Appeal No. CA/AK/61CA/2019 to the Criminal Cause List of this Court forthwith, for its hearing and determination on the merits.
I make no order for costs.

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RIDWAN MAIWADA ABDULLAHI, J.C.A.: Having had the privilege of reading the lead ruling delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, JCA which was served on me, I concur with the reasoning and conclusion as provided in the lead ruling.

I too abide by the order of my noble learned brother for the relist of Appeal No: CA/AK/61CA/2019; same to be restored for hearing and determination on the merit by this Court.
No order as to costs.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the lead ruling delivered by my learned brother, OYEBISI FOLAYEMI OMOLEYE, JCA, in Appeal No: CA/AK/169MC/2020.
I agree with the reasoning and conclusion therein.

Appearances:

Mr. Omotayo Olofinbinu, with him, Mr. Olajide Italoye For Appellant(s)

Mr. O. Bosun-Wadjo For Respondent(s)