DE RENAISSANCE HOTEL LIMITED v. RENAISSANCE HOTEL HOLDINGS INC
(2019)LCN/13910(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2019
CA/L/1264/2017
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLEJustice of The Court of Appeal of Nigeria
Between
DE RENAISSANCE HOTEL LIMITED Appellant(s)
AND
RENAISSANCE HOTEL HOLDINGS INC. Respondent(s)
RATIO
THE DUTY OF THE APPELLATE COURT
As a starting point, let me state with emphasis, that an appeal is not an opportunity to have a second bite at the cherry; in other words, the business of an appellate Court is to review the Judgment of the Court below to see if the lower Court took into consideration all the facts and evidence placed before it and arrived at a correct and unimpeachable decision. See CONTRACT RESOURCE NIG. LTD & ANOR Vs. UBA PLC (2011) LPELR-8137 (SC) Pg. 13, Para. C -E. PER ABUBAKAR, J.C.A.
WHETHER THE GRANT OR REFUSAL OF APPLICATIONS BY THE TRIAL COURT IS AT ITS DISCRETION AND WHEN THE APPELLATE COURT CAN INTERFERE WITH SUCH DISCRETION
On this note therefore, it is essential to state the settled position of the law which is that the grant or refusal of applications, such as in the instant case before the lower Court, is an exercise of discretion of the trial Judge; and this Court, as an Appellate Court cannot interfere with such exercise of discretion by the trial Court except in special circumstances which do not include that the Appellate Court would have exercised such discretion differently. See:ANYAH Vs. AFRICAN NEWSPAPER OF NIG. LTD.[1992] NWLR (Pt. 247) Pg. 319; (1992) LPELR-511 (SC) Pg. 20-21, Paras. G ? A and OLATUBOSUN Vs. TEXACO NIG. PLC (2012) LPELR-7805 (SC) Pg. 18, Paras. C ? D where the Supreme Court of Nigeria held that an appellate Court like ours will not interfere with the exercise of discretion of the Court below merely because this Court would have acted differently this Court will only interfere where the discretion exercised is manifestly wrong, arbitrary, reckless and injudicious. PER ABUBAKAR, J.C.A.
THE EFFECT OF SERVICE OF ORIGINATING PROCESSES AND HEARING NOTICES
The law is very well settled, that service of originating process or hearing notice constitutes the pedestal upon which to concrete the super structure of litigation, in the absence of service, the entire proceedings will be rendered void, and any decision reached thereon will constitute a nullity, See: PLASTEX (NIG) LTD Vs. MAINLAND OIL & GAS (2018) LPELR-43509 (CA) Pg. 41, Paras. C E. PER ABUBAKAR, J.C.A.
WHEN A PARTY WANTS A COURT TO RULE IN HIS FAVOUR
It is settled that a party who wants the Court to exercise its discretion in his favor must place before the Court sufficient material facts upon which the Court will be moved in his favour. See INTERNATIONAL TOBACCO COMPANY PLC Vs. BRITISH AMERICAN TOBACCO NIGERIA LTD & ANOR (2013) LPELR-20494 (CA) Pg. 23-24, Paras. C ? C and RE: NNAH (2018) LPELR-45640 (CA) Pg. 8-21, Paras. B ? A. From what has been said so far, it appears to me that the Appellant herein is seeking the exercise of discretion of the lower Court in its favor rather than placing hard facts that will attract the exercise by the Court of its discretion in its favor. PER ABUBAKAR, J.C.A.
WHEN THE NEED TO CALL ORAL EVIDENCE MAY BE DISPENSED WITH
However, whilst the Appellants position may be correct, there are exceptions to the need to call oral evidence where there are conflicting Affidavits before the Court; the need to call for oral evidence may be dispensed with where there are sufficient materials before the Court to resolve the conflict. See NJOEMANA Vs. UGBOMA (2014) LPELR-22494 (CA) Pg. 60-62, Paras. E A and MADAKI Vs. EFCC (2018) LPELR-44078 (CA) Pg. 9-17, Paras. B – C. PER ABUBAKAR, J.C.A.
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Federal High Court sitting in the Lagos Judicial Division, delivered by KUEWUMI, J., on the 29th day of September, 2017 in Suit No: FHC/L/CS/170/2014. The ruling is found at pages 334 ? 341 of the Records of Appeal. In the said Ruling, the learned trial Judge dismissed the Appellant?s Motion on Notice seeking to set aside the Judgment of ABANG J. delivered on the 6th day of April, 2016.
The Appellant?s Motion on Notice to set aside the Judgment of ABANG J., was filed on the 27th day of February, 2017 supported by 28 paragraph Affidavit deposed to by one Usman Abdul, attached to the affidavit are some Exhibits as contained at pages 127 ? 163 of the Records of Appeal. The Written Address in support of the said Motion was prepared and filed by learned Counsel Yusuf Jimoh on the same 27th day of February, 2017; it is found at pages 164 ? 170 of the Records of Appeal.
In response to the Appellant?s Application before the lower Court, the Respondent filed 10 paragraph Counter-Affidavit deposed to by one Olukorede Makanjuola on the 16th day of March, 2017 found at pages 234 ? 244 of the Records of Appeal with the attached Exhibits; the Written Address in support of the Counter-Affidavit is contained at pages 245 ? 249 of the Records of Appeal and was filed on the same date by Timothy Olubor. The Appellant also filed a 6 Paragraph Further Affidavit deposed to by Adishi Egwuanumkwu on the 31st day of March, 2017 as found at pages 262 ? 268 of the Records of Appeal; An 8 paragraph Further and Better Affidavit deposed to by Usman Abdul was filed on the 21st day of April, 2017 contained at pages 317 ? 319 of the Records of Appeal; and a Reply on Points of Law prepared and filed by Yusuf Jimoh Esq., also on the 21st day of April, 2017 as contained at 320 ? 324 of the Records of Appeal.
?
The parties were heard on the 2nd day of May, 2017, and on the 29th day of September, 2017 the learned trial Judge delivered Ruling and dismissed the Appellant?s Application and refused to set aside the Judgment delivered on the 6th day of April 2016 by ABANG J. The Appellant therefore became nettled by the Ruling of the lower Court and the Appellant made for this Court armed with a notice of appeal filed on the 10th day of October, 2017 as contained at pages 342 ? 345 of the Records of Appeal, the appeal is premised on three grounds of appeal.
The Appellant?s Brief of Argument was filed by Malik Esq., on the 27th day of November, 2017. On the other hand, the Respondent?s Brief of argument was filed by learned Counsel Olubor on the 29th day of December, 2017. The learned Counsel for the Appellant also filed a Reply Brief on the 6th day of February, 2018. Counsel for the Appellant nominated sole issue for determination on behalf of the Appellant, it is as follows:
Whether the lower Court was right to in refusing to set aside the judgment of Abang J?
The learned Counsel for the Respondent adopted the sole issue for determination crafted by the Appellant, the issue is again set out as follows:
Whether the lower Court was right in refusing to set aside the judgment of Abang J., delivered on 6th April, 2016?
SUBMISSIONS OF COUNSEL
Learned counsel for the Appellant cited ADEYEMI-BERO Vs. L.S.P.D.C [2013] 8 NWLR (Pt. 1356) Pg. 238 at 309, Paras. F H to submit that the trial Court is empowered to set aside its own decision especially where it finds that it gave a decision without jurisdiction as in the instant case. Counsel further relied on MULTICHEM INDUSTRIES LIMITED Vs. COMRADE HARRISON MUSA & ORS (2013) LPELR-19960 (CA) to argue that the means of challenging or rebutting affidavit of service is by filing an affidavit of non-service or an application disputing service by the person against whom the contention of service is made; and that the learned trial Judge ought to have set aside the Judgment of ABANG J., which was challenged by the Appellant on the ground that the Affidavit of service was false. Learned counsel referred to EMEKA Vs. OKOROAFOR [2017] 11 NWLR (Pt. 1577) Pg. 410 at 516; AUTO IMPORT EXPORT Vs. ADEBAYO [2002] 18 NWLR (Pt. 799) Pg. 554 at 582; SKENCONSULT (NIG.) LTD & ANOR Vs. GODWIN UKEY (1981) 1 SC Pg. 6 at 26 and ADEIGBE & ANOR Vs. GUTHRIE (NIG) LTD (1991) 4 SCNJ Pg. 1 at 17 to submit that the service of the originating process in a suit is fundamentally important and is the foundation of the jurisdiction of the Court.
?
Learned counsel further contended that the Appellant was not served with the Writ of Summons in the instant suit which was filed on the 11th of February, 2014. Counsel referred to the Affidavit of Service dated 29th April, 2014 contained at pages 25 & 428 of the Records of Appeal and the other Affidavits contained at pages 404 & 433 of the Records of Appeal to contend that the Affidavits of Service dated 29th April, 2014 which the lower Court relied upon in assuming jurisdiction clearly did not indicate that the Writ of Summons was served on the Appellant. Counsel submitted that on this score alone, the trial Court ought to have granted the Appellant?s application to set aside the judgment of ABANG J. Learned counsel referred to the Judgment of ABANG J. at pages 133 ? 145 of the Records of Appeal and contended that the judgment is a nullity because it contains fundamental errors.
?
Learned counsel argued that when the case came up on the 29th day of January, 2015 in the absence of the learned Counsel for the Appellant, the Court directed the Respondent?s to move their Application and then adjourned to the 19th day of March, 2015 without directing that hearing notice be issued and served on the Appellant; that on the 2nd day of April, 2015 after the Respondent called its witnesses and tendered Exhibits, the Court adjourned for the adoption of final Written Address thereby denying the Appellant the opportunity to cross-examine the Respondent?s witnesses, which act resulted in foreclosing the Appellant?s right to present its case; Counsel further submitted that on the 6th day of April, 2016, ABANG J. delivered judgment in the absence of evidence of service of hearing notice on the Appellant. Counsel submitted that the defects in the Judgment of ABANG J., constitute a fundamental breach of the Appellant?s right to fair hearing which occasioned substantial miscarriage of justice thereby renderi
