TELNET (NIG) LTD v. OGOLO (2022)

TELNET (NIG) LTD v. OGOLO

(2022)LCN/16434(CA)

In The Court of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, April 25, 2022

CA/PH/30/2019

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

TELNET NIGERIA LIMITED APPELANT(S)

And

ENGR. CHRISTOPHER OGOLO RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT MUST PRONOUNCE ON EVERY ISSUE PLACED BEFORE IT

On that score alone, the ruling of the lower Court cannot stand. In the case of Ovunwo v. Woko [2011] 17 NWLR (Pt. 1277) 522 at 546-547, the Court took the position that it is a Court’s duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice apart from, as in the instant case, breaching the right to fair hearing. The Court’s duty to pronounce on every issue raised before it is fundamental. The Supreme Court demands of and admonishes, the lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. A deliberate failure to do so has been characterised as amounting to failure to perform its statutory duty. PER ADEGBEHINGBE, J.C.A.

WHETHER OR NOT A COURT CAN COMMENCE AN ACTION

This Court has held that it is permissible to commence an action, in permissible and deserving circumstances against a person, though existing as a natural or artificial person but, whose name or real identity is not known to the claimant at the time of instituting the action in Court. This is because, it is essential that the legal meaning of the word ‘Person’ is clearly understood and explained as connoting a natural person and an artificial person. Thus, whenever the word ‘Person’ is used in a statute, it has always been interpreted to include both natural and artificial persons. Thus, it is acceptable to sue a “Person Unknown”. See the case of Monsurur Davies & Ors. v. Prince Tajudeen Odofin & Ors. [2017] LPELR-41871(CA) at pages 42-43, per Biobele Abraham Georgewill, JCA. PER ADEGBEHINGBE, J.C.A.

THE POSITION OF LAW ON THE PRINCIPLE OF NATURAL JUSTICE

Natural justice demands that a party be heard before the case against him is determined. Once there is an infringement of the principle of natural justice against him, then the trial is not fair. The principle of fair hearing is not a mere adjudication but a doctrine that enjoins that once a party entitled to be heard before deciding a matter is denied opportunity of being heard, the order or decision given thereon will be vacated or set aside, this is because the issue of fair hearing is constitutional and fundamental. See Olufeagba v. Abdulraheem & Ors. [2009] 18 NWLR (Pt. 1173) 384 and Ararume v. Ubah [2021] 8 NWLR (Pt. 1779) 511 at 539, per Oseji, J.S.C. His Lordship Abba Aji J. S. C. in the case of Gbenga v. A. P. C. [2020] 14 NWLR (Pt. 1744) 248 at 278, admonished us, on the issue of the attitude of an appellate Court to appeals, that:
“It is the law that the Court will not interfere with the decision of the trial Court on the ground of procedural irregularity where the irregularity has not occasioned a miscarriage of justice. See Per Musdapher, J. S. C. in Obisi v. Chief of Naval Staff … (2004) 11 NWLR (Pt. 885) 482. Rules of Court are rules of procedure. They do not by themselves regulate the exercise of a jurisdiction conferred on them. See Oputa, J. S. C. in Clement & Anor. v. Iwuanyanwu & Anor … (1989) 3 NWLR (Pt. 107) 39. Furthermore, rules of Court are not and should not be regarded as an end in themselves; but only means to an end, which is justice. The Courts will not therefore insist on strict compliance with any particular rules of Court if such strict application would inflict outright injustice. That has been the focus of this Court over the years. In Oloba v. Akereja (1988) 2 NSCC 120 at 136; (1988) 3 NWLR (Pt. 84) 508, this Court, per Oputa, JSC, emphasized the very purpose of rules Court as follows:
“All rules of Court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any rules of compliance which will lead to outright injustice.” PER ADEGBEHINGBE, J.C.A.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment): The respondent in this appeal filed an Originating Summons before the lower Court, on 03/03/2017, in suit no. BHC/19/2017. The named litigation foe appointed by the respondent in the process is “Unknown Persons”. The process is described as “ORIGINATING SUMMONS FOR POSSESSION OF LANDED PROPERTY OCCUPIED BY SQUATTER AND WITHOUT OWNER CONSENT PURSUANT TO ORDER 53 RULES OF THIS COURT”. The question and reliefs sought by the respondent are recorded thus:
“ … for the hearing of an application by the claimant for an order that he do recover possession of No 5 Onwuchekwa close Rumuobiakani Port Harcourt Rivers State on the ground that he is entitled to possession and that the persons in occupation is (are) in occupation without his license or consent.
AND THE CLAIMANT SEEKS THE FOLLOWING RELIEFS:
1) An order that the Defendant delivers vacant possession of No 5 Onwuchekwa Close Rumuobiakani Port Harcourt Rivers State and its appurtenances to the Claimant.
2) An order of this Honourable Court ejecting the Defendant(s) from the said property within (7) seven days after the judgment in this suit.” (Bold font for emphasis).
See pages 1-25 of the record of appeal.

After hearing the respondent’s counsel, the lower Court, presided over by Justice G. C. Aguma, on 27/09/2017 gave judgment on the Originating Summons, as follows:
JUDGMENT
The Deed of Assignment and the certificate of occupancy No. 2016/0337/A000337 clearly confers ownership of No. 5 Onwuchekwa close, Rumuobiakani on the Claimant.
He is therefore entitled to recover possession from the squatters on the land.
The squatters are ordered to give up possession forthwith the claimant shall have the right to evict the squatters from the day of this judgment and before the expiration of 3 months.”
See page 133 of the record of appeal.

On 21/11/2017, the current appellant filed an application before the lower Court, wherein it prayed for and stated its grounds for the application, as follows:
“1. An Order of this honourable Court extending the time within which the Applicant may apply to set aside the judgment of this honourable Court delivered on the 27th September 2017 in this suit.
2. An Order of this honourable Court setting aside the judgment of this honourable Court delivered on the 27th September 2017 in this suit.
3. An Order of this honourable Court setting aside the execution of the judgment of this honourable Court carried out on the 15th November 2017.
4. An Order of this honourable Court setting aside the entire proceedings in this suit.
5. An Order Joining Telnet Nigeria Limited as a party in the Suit.
6. Any further Order or Orders as the Court may deem fit to make in the circumstances.
TAKE NOTICE that the grounds upon which this application is brought are, as follows:
1. That the originating processes in this suit were not served on the applicant who is the owner and in occupation of the premises.
2. That the judgment in this suit was obtained by fraud and misrepresentation.
A. PARTICULARS OF FRAUD and MISREPRESENTATION
i. That known to the Claimant, the Applicant is the bonafide owner/occupier of the property known as No. 5 Block A, Onwuchekwa Close and has legal title to the said property having purchased same by Deed of Assignment dated the 15th May 2005.
ii. That known to the Claimant, the applicant has been in possession and occupation of the property known as No. 5 Block A, Onwuchekwa Close for over Seventeen years.
iii. That the Claimant had previously filed Suit No. MCR/7R/2007 between the Claimant and the applicant’s subsidiary at the Magistrate Court in respect of the premises.
iv. That the Claimant failed to specifically name the applicant as a party in this suit even when the applicant was well known to the Claimant.
v. That the applicant was not served with the processes in this suit despite being in occupation and possession of the premises known as No. 5 Block A, Onwuchekwa Close.
vi. That due to the lack of service the applicant was not aware of this suit and as a result, was prevented from entering appearance in this suit and denied the opportunity of presenting a defence to the claims made by the Claimant.”

Ademola Oluwaseyi Omisola deposed to the affidavit filed in support of the application. (See pages 26-74 of the record of appeal).

On 19/12/2017, the respondent deposed to and filed a counter-affidavit before the lower Court. See pages 75-77 of the record of appeal.

Appellant filed a further affidavit on 12/01/2018, which Ademola Oluwaseyi Omisola deposed to. See pages 108-110 and 116-118 of the record of appeal.

The ruling of the lower Court (Coram: Justice G. C. Aguma) on the appellant’s application before it, is located at pages 128-132 of the record of appeal. The lower Court refused the application of the appellant in the ruling of 16/10/2018. The appellant was aggrieved by the decision of the lower Court and filed a notice of appeal, which was amended, with leave of Court. Thus, this appeal is predicated on the amended notice of appeal filed by the appellant on 26/11/2019, but deemed properly filed and served on 24/02/2020. There are seven grounds of appeal in the (amended) notice of appeal.

In the appellant’s amended brief of argument, learned counsel for the appellant (Lotanna C. Okoli Esq.) set the issues for determination, as follows:
“i. Whether the failure of the respondent to serve the originating processes on the appellant robbed the trial Court of jurisdiction and therefore rendered the proceedings and subsequent judgment a nullity; (Ground 2).
ii. Whether the trial Court was right when it refused the Appellant’s application to set aside the judgment of the Court and thereafter dismissed the application. (Grounds 1, 3, 4, 5, 6 and 7).

In the respondent’s amended brief of argument, learned counsel for the respondent (E. E. Obomanu Esq.) asked the following questions:
“1. By way of preliminary objection, whether giving the circumstances of this appeal, is the appellant’s appeal competent having been filed without due process of law.
2. Whether the failure of the Respondent to serve the originating process on the 1st appellant robbed the trial Court of jurisdiction and therefore rendered the proceedings and subsequent judgment a nullity: (Ground 2).
3. Whether the trial Court was right when it refused the Appellant’s application to set aside the judgment of the Court and thereafter the application. (Ground 1, 3, 4, 5, 6 and 7).”

On 10/02/2022, when this appeal was argued, L. C. Okoli Esq. (SAN) (with A. K. Aluzu Esq.) announced his appearance for the appellant. E. E. Obomanu Esq. appeared for the respondent.

Okoli Esq. (SAN), in arguing the appeal, relied on appellant’s amended notice of appeal filed on 26/11/2019, but deemed properly filed and served on 24/02/2020. He adopted appellant’s brief of argument filed on 17/10/2019 but deemed properly filed and served on 24/02/2020 and the reply brief of argument, filed on 15/06/2021 but deemed properly filed and served on 10/02/2022, as argument of the appeal, which he urged the Court to allow.

E. E. Obomanu Esq. adopted respondent’s amended brief of argument filed on 09/03/2021 but deemed properly filed and served on 10/02/2022 as argument of opposition to the appeal. He urged the Court to dismiss the appeal.

As it is apparent, the first issue set by the respondent’s counsel does not arise from the grounds of appeal filed by the appellant. It is incompetent and it is struck out. The appeal will be determined on the very compact issues raised by the appellant, the owner of the appeal, which is almost identical to issues 2 and 3 set by the respondent’s counsel.

PRELIMINARY OBJECTION
At the hearing of the appeal, it was after appellant’s counsel had argued the appeal that the respondent’s counsel (Obomanu Esq.) rose to inform the Court that the respondent filed a notice of preliminary objection on 19/03/2020 which was argued in the respondent’s brief of argument. It is settled that where there is a preliminary objection which is not argued before the appeal is argued, such preliminary objection is deemed to have been abandoned. See the case of Zaibadari Company Limited v. Federal Inland Revenue Service [2021] LPELR-55594 at 11-16 (per Olabode Abimbola Adegbehingbe, J.C.A.). The respondent’s preliminary objection is deemed to have been abandoned.

Despite having taken a position, as stated above, on the issues raised by the respondent in the preliminary objection, for record purposes, it is my view that the ruling appealed against, dated 16/10/2018 is a final decision and the appellant is entitled to file this appeal as a matter of right. This is the right created by Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999. The ruling is final because, as it concerned the lower Court, it finally determined the interest of the appellant, such that, going by the tenure of the decision, the appellant did not have to return to the lower Court for any other purpose. See Odutola v. Oderinde (2004) 12 NWLR (Pt. 888) 574 and Agbogunleri v. Depo (2008) 3 NWLR (Pt. 1074) 217.
It should also be pointed out that the appeal before us is against the Ruling of the lower Court dated 16/10/2018 and not against the judgment of that Court, dated 27/09/2017. It is my view that the appeal was validly filed. The appellant was the person/party who filed the application which culminated in the ruling dated 16/10/2018, and is on appeal before us. The appellant was not required to appeal by seeking and obtaining prior leave of the Court. The appellant was a party to the proceedings before the lower Court, which is on appeal before us. The appellant was entitled to file his appeal, as a matter of right, as a person aggrieved by the decision of 16/10/2018, going by the provisions of Section 240 of the Constitution of the Federal Republic of Nigeria, 1999. The appeal was validly filed on 16/10/2018 against a ruling of the lower Court delivered the same day. In the case of Persons Name Unknown v. Sahris International Ltd. [2019] 13 NWLR (Pt. 1689) 203, the appellant did not attempt to make the trial Court reverse itself before filing an appeal, as it happened in this case.

Determining the Appeal
Resolution of the First Issue
The first issue asks:
Whether the failure of the respondent to serve the originating processes on the appellant robbed the trial Court of jurisdiction and therefore rendered the proceedings and subsequent judgment a nullity; (Ground 2).
In the first issue, the appellant’s complaint is that the originating process, which initiated the proceedings before the lower Court, was not served on the premises sought to be possessed by the respondent (No. 5, Onwuchekwa Close, Rumuobiakani, Port Harcourt) as demanded by Order 53 Rule 4(2) of the High Court of Rivers State (Civil Procedure) Rules, 2010. The appellant only became aware of the suit on 15/11/2017 when it was evicted from the premises, in apparent execution of the order of the Court in its judgment dated 27/09/2017. The appellant therefore submitted that failure to serve the Originating Summons, as prescribed, denied him opportunity for fair hearing, which should cause the nullification of the proceedings and judgment of the lower Court. Appellant’s counsel cited Order 3 Rule 8 of the Rules of the lower Court, which prescribes the need to leave copies of the process at the Registry of that Court for service on the respondent(s). The attention of the Court was also directed to Order 53 Rule 4 of the same Rules of Court.

It was pointed out that in the affidavits exchanged before the lower Court, the respondent did not deny, challenge or controvert appellant’s deposition on the fact of non-service, which is an admission of the fact. Reliance was placed on the fair hearing provision in Section 36(1) of the 1999 Constitution to make the submission that the proceedings before the lower Court was a nullity.

On the part of the respondent’s counsel, regarding the first issue, it was argued that Order 53 of the Rules of the lower Court is a special provision which has imperative mandate for compliance and implications. He is of the view that rules 2 and 4 of Order 53 makes provision for service of Originating process on only named parties in the suit. Reliance is placed on the decision in Persons Names Unknown v. Sahris International Ltd. (supra). In paragraphs 14-23 of the affidavit in support of the application, which the respondent filed before the lower Court, it is deposed as follows:
“14. That in the morning of Wednesday the 15th November 2017 the Claimant came into the premises with Court bailiffs and policemen with a Court order and in execution of the order evicted the applicant’s personal from Block A which is owned by the applicant. In carrying out the execution, applicant’s equipment and property were thrown out of the building.
15. That I on behalf of the applicant instructed our lawyers to conduct a search of the Court file at Bori High Court. This search was conducted on Thursday the 16th of November 2017 by U. C. Anyalechi Esq. I am informed by U. C. Anyalechi Esq. at about 9:00 am at the offices of Jurislaw Associates at 6 Igbodo Street Old GRA on the 17th of November 2017 and I verily believe as follows:
a. That the Claimant commenced this action against persons unknown for the possession of the property at No. 5 Onwuchekwa Close.
b. That in applying for the order of Court the Claimant relied upon a C of O alleged to have been granted in February 2017.
c. That the Claimant informed the Court that the premises in question were occupied by persons who were unknown to him.
d. That the Counsel who represented the Claimant in the application before the Court was E. E. Obomanu Esq. the same Counsel who had represented the Claimant in its previous dealings with the applicant.
e. That the Claimant did not bring to the attention of the honourable Court the fact that the applicant had registered title over the property at No. 5 Block A Onwuchekwa lose.
f. That the Claimant did not bring to the attention of the honourable Court the fact of the dispute and agreement reached in settlement thereof in respect of Blocks A and B at No. 5 Onwuchekwa Close.
g. That the applicant was not served with the processes since the applicant was not even made a party to the suit.
16. That I, on behalf of the applicant, instructed our lawyer to conduct a search on the Applicant’s registered title at the lands registry Port Harcourt. This search was conducted on Friday the 17th of November 2017 by U. C. Anyalechi Esq. I am informed by U. C. Anyalechi Esq. at about 11:00 am at the offices of Jurislaw Associates at Igbodo Street Old GRA on the 20th November 2017 and I verily believe that the result of the search confirmed that, according to the records at the lands registry, the property at Plot 5 Block A Onwuchekwa Close is still registered in the name of Telnet Nigeria Limited consent of the Governor to the transaction having been granted in February 2008 and the document registered on 4th June 2009 more than seven years before the Certificate of Occupancy relied upon by the Claimant. Attached and marked Exhibit T7 is a print out of the search report received from the lands registry Port Harcourt.
17. That the Claimant who has been in communication with the applicant, and has exchanged correspondence and Court processes with it, now chose to refer to the applicant as Unknown Persons in the processes he filed in the High Court in Bori.
18. That Counsel to the Claimant in this Suit E. E. Obomanu Esq. is the same Counsel who appeared for the Claimant before the Magistrate Court and is the same Counsel who wrote the letter Exhibit T6.
19. That the Claimant and his Counsel, in obtaining judgment before this honourable

Court did not disclose the full and complete facts to the honourable Court.
20. That the Applicant has for over sixteen years used the property as its office address and has employees working at the property every day with security personnel stationed at the gate every day of the week and at every hour. That the applicant was never served with any of the Court processes in this suit and was not aware of the existence of this suit prior to the 15th November 2017. The applicant only became aware of this suit on the 15th November 2017 when the Claimant came with bailiffs to execute the judgment of this honourable Court.
22. That the Applicant’s business activities have been greatly disrupted by the execution of the order of this honourable Court.
23. That by the proceedings as prosecuted by the Claimant and the resulting judgment of this honourable Court the applicant not been afforded an opportunity to be heard or to present its own side of the story.” (Bold font for emphasis).

It needs to be pointed out that the respondent did not controvert the depositions above. Rather than do so, the respondent set up the story of how he obtained a certificate of occupancy and thereby became the owner of the property in issue. A perusal of the counter-affidavit filed by the respondent before the lower Court confirms that the respondent did not claim to have effected service of the originating summons, with which he commenced proceedings, on the unknown person he sued or on the appellant who claimed to have been the occupier of the premises sought to be possessed by the respondent. Against the claim of the appellant that the originating summons ought to have been served on her, as the occupier of the premises in issue, is the contention of the respondent to the effect that the Rules of the lower Court do not prescribe that such service should be effected on a person who is not named in the suit.

In resolving the first issue and for clarity, it is imperative that the entire provisions of Order 53 should be laid out here. Order 53 of the High Court of Rivers State (Civil Procedure) Rules, 2010, titled SUMMARY PROCEEDINGS FOR POSSESSION OF LANDED PROPERTY OCCUPIED BY SQUATTERS OR WITHOUT THE OWNER’S CONSENT” provides as follows:
“1. (1) This Order shall not apply where the person in occupation of land is:
(a) a tenant; or
(b) a tenant holding over after termination of his tenancy; or
(c) a licensee of the owner or person entitled to possession; or
(d) a person who had the consent of the predecessor-in-title of the person who is entitled to possession.
(2) Where a person claims possession of land which he alleges is occupied solely by a person not listed in sub-rule 1 above, proceedings may be brought by originating summons in accordance with the provisions of this Order.
2. The originating summons shall be in Form 38 and no acknowledgment of service shall be required.
3. The claimant shall file in support of the originating summons an affidavit stating:
(a) his interest in the land;
(b) the circumstances in which the land has been occupied without license or consent and in which his claim to possession arises; and
(c) that he does not know the name of any person occupying the land who is not named in the summons.
4. (1) Where any person in occupation of the land is named in the originating summons, the summons together with a copy of the affidavit in support shall be served on him;
(a) personally or in accordance with Order 7 Rule 1 Sub-rule 3; or
(b) by leaving a copy of the summons and of the affidavit or sending them to him at the premises;
or
(c) in such manner as the Judge may direct
(2) The summons shall, in addition to being served on the named defendants, if any, in accordance with sub-rule 1 of this Rule be served, unless the Judge otherwise directs by;
(a) affixing a copy of the summons and a copy of the affidavit to the main door or other conspicuous part of the premises; and
(b) if practicable, inserting through the letter box at the premises, a copy of the summons and a copy of the affidavit enclosed in a sealed envelope addressed to the “occupiers”.
(3) Every copy of an originating summons for service under sub-rule 1 or 2 of this Rule shall be signed and stamped by the Registrar of the Court.
5. Without prejudice to Rule 16 of Order 13, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.
6. (1) An order for possession in proceedings under this Order shall be in Form 39 with such variations as circumstances may require.
(2) The Judge may forthwith order with a writ of possession to be issued.
(3) Nothing in this Order shall prevent the Judge from ordering possession to be given on a specified date, in the exercise of any power which could have been exercised if possession had been claimed in an action begun by writ.
7. (1) No writ of possession to enforce an order for possession under this Order shall be issued after the expiration of 3 months from the date of the order without the leave of the Judge.
(2) The application for leave may be made ex parte unless the Judge otherwise directs.
8. (1) The Judge may, on such terms as he deems fit, set aside or vary any order made in proceedings under this Order.
(2) In this Order “landed property” means land with or without building thereon.” (Bold font for emphasis).
In the case of Omokuwajo v. State (2013) 9 NWLR (Pt. 1359) 300, it was confirmed that Rules of Court do not override the provision for fair hearing in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. In the case of Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76, we are warned that mandatory rules of Court are not as sacrosanct as mandatory Statute or Act. Rules of Court cannot override statutory provisions of the law. Thus, the above provisions of the Rules of the lower Court must be read, appreciated, and understood in the context of extant provisions of the Constitution and other statutes affecting disputes over land and its possession, as it pertains to this appeal.
The appellant, in consonance with Order 53 Rule 1(d), quoted above, was in occupation of the premises before the respondent claimed to acquire interest in it. Thus, Order 53 is not applicable to the appellant.

The appellant claimed that for sixteen years it has been an occupier of the premises in issue in this appeal and has done its business therein and kept staff thereat. The appellant complains that it was only when the judgment of the lower Court was to be enforced or executed by Bailiffs of the lower Court, in company of the respondent, that it became aware of the fact that a suit had been filed and judgment entered in respect of the premises. The appellant complained to the lower Court that it had been denied fair hearing or opportunity to be heard, as it was not served with the originating process, which culminated in the judgment of the lower Court, dated 27/09/2017. It is striking that the lower Court, to whom a complaint of denial of fair hearing was presented, failed to address the issue in its ruling of 16/10/2018. It was a loud and discomfiting silence on the part of the lower Court. Despite the fact that the lower Court recounted the grounds for the application before it in the ruling now on appeal, the lower Court did not make a decision on the question of fair hearing.

On that score alone, the ruling of the lower Court cannot stand. In the case of Ovunwo v. Woko [2011] 17 NWLR (Pt. 1277) 522 at 546-547, the Court took the position that it is a Court’s duty to pronounce on every issue properly placed before it for consideration and determination before arriving at a decision and where it has failed to do so, it leads to a miscarriage of justice apart from, as in the instant case, breaching the right to fair hearing. The Court’s duty to pronounce on every issue raised before it is fundamental. The Supreme Court demands of and admonishes, the lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination, in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. A deliberate failure to do so has been characterised as amounting to failure to perform its statutory duty.

Apart from the above, Order 53 is a procedure which is specially enacted to aid the quick resolution of the disputes which fall within its scope. Despite that fact, it is still a mode of commencement of a suit which is intended to determine and settle disputes. It is meant to settle disputes between a claimant and persons who are occupiers of premises, to which the claimant lays claim of ownership. Order 53 provides for two types of adversaries for the claimant. The first category is in respect of persons whose names are known by the claimant, for whom service of process is required by the force of Order 53 Rules 2 and 4. The other category are persons whose names are not known by the claimant, but who are occupiers of the premises or land to be possessed and in respect of whom provision in Rule 5 of Order 53 is made. Though the names of such parties may not be known, the law describes them, deliberately, as unknown persons. Therefore, Order 53 Rules 5 provides:
“5. Without prejudice to Rule 16 of Order 13, any person not named as a defendant who is in occupation of the land and wishes to be heard on the question whether an order for possession should be made may apply at any stage of the proceedings to be joined as a defendant.”
(Bold font for emphasis).
This Court has held that it is permissible to commence an action, in permissible and deserving circumstances against a person, though existing as a natural or artificial person but, whose name or real identity is not known to the claimant at the time of instituting the action in Court. This is because, it is essential that the legal meaning of the word ‘Person’ is clearly understood and explained as connoting a natural person and an artificial person. Thus, whenever the word ‘Person’ is used in a statute, it has always been interpreted to include both natural and artificial persons. Thus, it is acceptable to sue a “Person Unknown”. See the case of Monsurur Davies & Ors. v. Prince Tajudeen Odofin & Ors. [2017] LPELR-41871(CA) at pages 42-43, per Biobele Abraham Georgewill, JCA.
The procedure, which is mandated to be commenced under Order 53 is not intended or prescribed to be ex parte. The person in possession of the land sought to be possessed has to be served with the originating and other processes in the litigation by the party suing. The only manner a person, in the circumstances of Order 53, who is not named in a suit, may become aware that the suit exists and may be given the opportunity to participate in the litigation process, is when he is made aware of the existence or pendency of the suit, by being served with processes from Court, as prescribed by the Rules of Court. Rule 5 of Order 53 is not a lame provision. Rather, the lawgiver is conscious of the provision of Section 36(1) of the 1999 Constitution, which, provides:
“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.”
Order 7 Rules 4 and 5 of the High Court of Rivers State (Civil Procedure) Rules, 2010 provides thus:
“4. All processes in respect of which personal service is not expressly required by these Rules or any applicable law shall be sufficiently served if left with an adult person resident or employed at the address for service given under Order 4 Rule 6.
5. (1) Where personal service of an originating process is required by these Rules or otherwise and a Judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the claimant make such order for substituted service as may seem just.
(2) Every application to the Judge for substituted service shall be supported by an affidavit setting forth the grounds upon which the application is made.”
The respondent confessed that there were some persons, who could have been served, on the premises of the property in paragraph 9 of his counter-affidavit before the lower Court, when he testified thus:
“9. That consequent upon this forgery a petition was written to the Commissioner of Police and assigned to the Divisional Police Officer in charge of Elekaohia Police Division wherein the applicant officers were arrested and later compromised and the applicant fizzled out but placed unknown persons in Block A of No. 5 Onwuchekwa Close.”
(Bold font for emphasis).
It is the denial of fair hearing which the appellant complains of, in this appeal. That complaint derives from the fact that there is no indication from the record of appeal that there was an attempt to serve or actual service of the originating summons or any other process from Court, on the respondent or an occupier of the premises sought to be possessed by the respondent, thereby defaulting on a fundamental requirement of the Rules of the lower Court and the Constitution. Even where Order 53 does not make provision for service of originating process on an occupier of premises to be possessed (which I confirm is not a fact), the law will still demand that the Originating Summons, which is not intended to be ex-parte, ab initio, must be served, in order to serve the constitutional requirement of fair hearing. One of the conditions for filing a suit under the provisions of Order 53 is that there is some person, whose name is not known, occupying the premises to be possessed. Thus, such a person is entitled to be served with the originating process or notified about the suit in Court to enable him take advantage of the provision under Order 53 Rule 5.
Natural justice demands that a party be heard before the case against him is determined. Once there is an infringement of the principle of natural justice against him, then the trial is not fair. The principle of fair hearing is not a mere adjudication but a doctrine that enjoins that once a party entitled to be heard before deciding a matter is denied opportunity of being heard, the order or decision given thereon will be vacated or set aside, this is because the issue of fair hearing is constitutional and fundamental. See Olufeagba v. Abdulraheem & Ors. [2009] 18 NWLR (Pt. 1173) 384 and Ararume v. Ubah [2021] 8 NWLR (Pt. 1779) 511 at 539, per Oseji, J.S.C. His Lordship Abba Aji J. S. C. in the case of Gbenga v. A. P. C. [2020] 14 NWLR (Pt. 1744) 248 at 278, admonished us, on the issue of the attitude of an appellate Court to appeals, that:
“It is the law that the Court will not interfere with the decision of the trial Court on the ground of procedural irregularity where the irregularity has not occasioned a miscarriage of justice. See Per Musdapher, J. S. C. in Obisi v. Chief of Naval Staff … (2004) 11 NWLR (Pt. 885) 482. Rules of Court are rules of procedure. They do not by themselves regulate the exercise of a jurisdiction conferred on them. See Oputa, J. S. C. in Clement & Anor. v. Iwuanyanwu & Anor … (1989) 3 NWLR (Pt. 107) 39. Furthermore, rules of Court are not and should not be regarded as an end in themselves; but only means to an end, which is justice. The Courts will not therefore insist on strict compliance with any particular rules of Court if such strict application would inflict outright injustice. That has been the focus of this Court over the years. In Oloba v. Akereja (1988) 2 NSCC 120 at 136; (1988) 3 NWLR (Pt. 84) 508, this Court, per Oputa, JSC, emphasized the very purpose of rules Court as follows:
“All rules of Court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any rules of compliance which will lead to outright injustice.”
And to put the issue beyond conjecture, Form 38, which is prescribed as example by Order 53 Rule 2 (see the case of Egolum v. Obasanjo & Ors. [1999] LPELR-1046(SC) page 60), for commencement of a suit thereunder, shows that the Originating Motion is expected to be directed to a named person or every (other) person in occupation of the premises in issue, apart from the named persons. It is expected to be addressed to:
“CD, E.F., and G. H…………. Defendants
(if any) whose name is known to the claimants
To (C. D and) every (other) person in occupation of …
Let all persons concerned attend before ….. at the ….. Judicial Division of the High Court of Rivers State on ….., the … day of ….20… at 9 O’clock in the forenoon for the hearing of an application by AB for an order that he do recover possession of on the ground that he is entitled to possession and the person(s) in occupation is (are) in occupation without his license or consent….
Note:
Any person occupying the premises who is not named as a defendant by this Summons may apply to the Court personally or by Legal Practitioner to be Joined as Defendant, if a person occupying the premises does not attend personally or by Legal Practitioner at the time and place above-mentioned, such order will be made as the Court may think just and expedient.” (Bold font for emphasis).
An examination of the originating summons at page 1 of the record of appeal confirms that the process, which was never served, was appropriately addressed to:
“To
The Defendant occupying No 5 Onwuchewka Close Rumuobiakani Obio/Akpor Local Government Area.
To Every Person in Occupation of No 5 Onwuchekwa Close Rumuobiakani Port Harcourt Rivers State”
The Originating Summons, under Order 53 of the Rules of the lower Court, is designed to serve as a means of notifying the person in occupation of the premises, whose name is not known, that there is a litigation process ongoing in the Court, to which he is invited. Thus, such a person must be served with the originating summons. Where a statute clearly provides for a particular act to be performed, failure to perform the act on the part of the party will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. In such a situation, the consequences of non-compliance with the statutory provision follow notwithstanding that the statute did not specifically provide for a sanction. The Court can, by the invocation of its interpretative jurisdiction, conclude that failure to comply with the statutory provision is against the party in default. See Adesanoye v. Adewole [2006] 14 NWLR (Pt. 1000) 242 at 269. In this case, the respondent is in default.

In the suit before the lower Court, there was lack of service of the originating process on the party to be affected by the order of the Court, such that the lower Court lost or did not acquire requisite jurisdiction to determine the suit before it. See Madukolu v. Nkemdilim [1962] 2 SCNLR 341. The fundamental condition precedent of service of the originating process and notification of the party to be affected by the order of Court compromised the sanctity or purity of the judicial process conducted by the lower Court, such that the proceedings before the lower Court cannot be allowed to stand. It is impure. The lower Court ought to have granted the application brought to it by the appellant because the appellant, the occupier of the premises, was denied fair hearing. It should not have been difficult for the respondent to controvert the case of the appellant, with documents showing the particular person or party who was evicted from the premises on 15/11/2017, if it is not the appellant who was evicted, as the appellant claimed. The Bailiffs who carried out the execution and the respondent who accompanied them should have the information. Thus, it is easy to believe the appellant that it was in occupation of the premises when the judgment of the lower Court was executed against it.
This Court also holds that the appellant was not served or given notice of the litigation against it, as ‘Unknown Person’ (and this will be explained later) or occupier of the premises to be possessed by the respondent. In the case of Adegbola v. Osiyi [2018] 4 NWLR (Pt. 1608) 1 at 13, with respect to the issue of service of Court process, the Court stated as follows:
“Service of Court process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seised of the matter. Clearly, due process of Court is a condition sine qua non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside.”
It is important to point out that Order 53 of the High Court of Rivers State High Court (Civil Procedure) Rules, 2010 and other provisions like it, may be treading on dangerous evidential terrain, where it appears to suggest that persons who are in occupation of land are squatters. This is because, and Courts should note that by virtue of Section 143 of the Evidence Act, 2011, when the question is whether any person is the owner of anything which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. See Jinadu v Esurombi-Aro [2005] 14 NWLR (Pt. 944) 142 at 200. It is therefore imperative that the person in occupation or possession of land, in whose favour the law presumes ownership, should be heard before such presumption may be said to have been validly rebutted.
A Court of law will not make an order affecting the interest of a party that is not before it. So doing will amount to an unpardonable infraction of the fundamental right of the party to fair hearing. It is unconscionable to shave a man’s head behind his back. See Ararume v. Ubah [2021] 8 NWLR (Pt. 1779) 511 at 533. The application of the appellant before the lower Court for the judgment of the lower Court, dated 27/09/2017, to be set aside should have been granted, based on the facts and material before the lower Court. As the lower Court failed to do so, this Court will reverse the decision of that Court and grant the application.

Resolution of the Second Issue
The second issue in the appeal asks:
Whether the trial Court was right when it refused the
appellant’s application to set aside the judgment of the Court and thereafter dismissed the application. (Grounds 1, 3, 4, 5, 6 and 7).
It must be recalled that, in the resolution of the first issue, it is the duty of this Court, in its appellate capacity, having found that there was denial of fair hearing and consequent want of fair hearing, to reverse the decision of the lower Court. However, since the second issue for determination asks a question, an answer will essentially have to be provided.

The first issue has already determined the success of the appeal before this Court. The second issue interrogates the decision of the lower Court in its ruling, where it refused the application of the appellant to set aside its own judgment dated 27/09/2018, based on grounds listed before it.

With respect to the second issue, appellant’s counsel argued that due to earlier interactions, exchange of correspondence and agreements reached between the appellant and the respondent, the respondent knew the appellant and about appellant’s interest in the property in issue before filing the suit before the lower Court. It was submitted that the documents attached to the affidavit filed by the appellant before the lower Court were intended to make the lower Court appreciate the fact that the appellant did not fall into the category of persons to be sued under Order 53 of the Rules of the lower Court. Learned counsel submitted that the lower Court erred in its conclusions on the facts, by relying on respondent’s certificate of occupancy, where the appellant exhibited his registered Deed of Assignment, registered on 04/06/2009, seven years before the respondent was issued a certificate of occupancy. It was submitted that the lower Court’s decision to go into the issue of who had better title between the parties was perverse, as that was not an issue for the Court to determine under the procedure adopted. The question before the lower Court, according to learned counsel, is whether the lower Court could have made the orders it made pursuant to Order 53, in view of existing facts. He called upon this Court to set aside the ruling of the lower Court, which failed to limit itself to the issue before it.

Learned counsel complained that in view of contentions on facts exposed to the lower Court, adoption of Originating Summons as a vehicle for the suit was inappropriate. It was submitted that the lower Court was in error when it dismissed the appellant’s application and that the judgment could be set aside, against the holding of the lower Court that it delivered a final judgment and could not find proof of fraud or misrepresentation, especially going by the provision of Order 53 Rule 8(1) of the Rules of the lower Court. Learned counsel relied on the decision in Tomtec (Nig.) Ltd. v. F. H. A. (2009) 18 NWLR (Pt. 1173) 358 at 382 on when a Court may set aside its own judgment. He insisted that the facts deposed to by the respondent, in the affidavit in support of the Originating Summons, were false and incorrect, which amounted to fraud on the Court by a party to the suit.

It was pointed out that the lower Court failed to rule or comment on the prayer by the appellant to be joined as a party to the suit before the lower Court, which amounted to miscarriage of justice, as the appellant was a necessary and proper party in the proceedings.

Learned counsel urged this Court to allow the appeal, set aside the decision of the lower Court and grant the application seeking the setting aside and execution of the judgment of the lower Court.

The respondent’s counsel argument of the second issue mentioned the motion on notice filed by the appellant, which is at page 26 of the record of appeal. Learned counsel submitted that a party seeking the discretion of Court has the duty to place sufficient materials before the Court to assist the Court in its exercise of discretion. The Court is not expected to overlook exhibits attached to affidavits, as they form part of the affidavit, from which the Court may draw inferences and conclusions, contrary to the submission by the appellant’s counsel. The case of SBN v. CBN [2009] 6 NWLR (Pt. 1137) 237 at 295-297 etc. were cited.

It was submitted that the argument of the appellant’s counsel did not show perversity in the lower Court’s decision or miscarriage of justice. This Court was urged to resist replacing the views of the lower Court with its own. Learned counsel insisted that the respondent, with his certificate of occupancy, is the owner of the property in issue and that the appellant did not present any evidence to displace that fact to the lower Court. He pointed out that the appellant’s “deed of conveyance” (exhibit T1) was made during the pendency of the suit in exhibit T3 and that the Governor’s consent in exhibit T1 is dated 29/02/2008, while the Deed Registrar signed exhibit T1 on 04/06/2009, all during the pendency of proceedings seeking to recover the premises, at pages 42-45 of the record of appeal. He submitted that documents made during pendency of a suit are inadmissible and should be discountenanced, with the aid of the case of UTC v. Lawal [2014] 5 NWLR (Pt. 1400) 221 at 236-240.

Learned counsel pointed out that possession may be taken from either a squatter or a person occupying premises without owner’s consent, under Order 53 of the Rules of the lower Court. He narrated facts, but concluded, that the appellant and his tenant in the property in issue (Telnet Network Services Ltd.) “fizzled out and placed an unknown person in the premises.”

He described Order 53 as a procedure intended to avoid full trials, where the adversary cannot satisfy the Court that he should be allowed to defend the action. Narrating circumstances in which a Court may set aside its decision, learned counsel submitted that this instant appeal did not fall into that category. It was submitted that the lower Court had become functus officio upon delivery of its final decision. He urged this Court to dismiss the appeal.

In resolving the second issue, I intend to draw attention to some pronouncements in decisions of Courts, which may have impact on the appeal before us. These are:
a. The general understanding is that once a Court delivers its decision, it does not have the power to set it aside except in very special circumstances that the law has been clear about. The inherent jurisdiction of the Court to set aside its own judgment or ruling is limited to judgment or orders that are nullities. See Kamalu v. Ojoh [2000] 11 NWLR (Pt. 679) 505 at 512 and Obimonure v. Erinosho [1966] 1 All NLR (Pt. 250.
b. In the case of Makinde v. Adeogun [2009] 1 NWLR (Pt. 1123) 575 at 591-592, this Court stated that, as a general rule, no Court or Judge has the power of rehearing, reviewing or varying any judgment or order either in an application made in the original action or in a fresh action brought for that purpose. That task ordinarily belongs to the appellate body, by law empowered. The rule which is informed by the policy that litigations must be brought to an end, has many exceptions. These exceptions are either as provided for by the applicable rules of Court or under the inherent jurisdiction of the Court. If not so empowered, the Court that had determined a cause or matter ceases to possess further power in dealing with the case, except with respect to such ancillary matters as stay of execution, instalmental payments etc. The Court is said to have become functus officio, its powers to review or vary the decision having been assigned to an appellate body. The inherent jurisdiction of a Court to set aside its judgment or order has been held to be limited to such of its judgments or orders which are nullities.
c. In the case of Nen Limited v. Asiogu [2008] 14 NWLR (Pt. 1108) 582 at 593, it was revealed that the power of a Court to set aside its judgment is statutory. Thus, a Court does not have power to set aside its judgment without a statutory provision enabling it to do so. There are certain situations when a Court of concurrent or co-ordinate jurisdiction can set aside the judgment or order of another Court. Such circumstances include where:
(i) the writ or application was not served on the other party; or
(ii) the action is tainted with fraud; or
(iii) the Court lacks jurisdiction to entertain the action or is affected by debilitating defects that go to the root of jurisdiction.
See also Oyubu v. Akpobarojero (1998) 4 NWLR (Pt. 546) 422 at 436 and Lawal v. Dawodu (1972) 8-9 SC 83.
d. The Court in the case of Nnodi v. Thanks Investment Ltd. [2005] 11 NWLR (Pt. 935) 29 at 49 explained that a Court lacks the jurisdiction to set aside its own decision except as permitted by the common law, such as when the decision is a nullity by reason of a breach of procedure or has occasioned a miscarriage of justice or as provided for by the rules, such as when judgment is given in default or the Court is given the power to discharge an order it has made.
e. The position of the law is that an order of Court which was made without jurisdiction ought to be set aside ex debito justitiae.
That should be done without much ado. The trial Court would be qualified to set such an order aside. See Aborisade v. Abolarin [2000] 10 NWLR (Pt. 674) 41; Timitimi v. Amabebe [1953] 14 WACA 374; A. G. Anambra v. Okafor [1992] 2 NWLR (Pt. 224) 396; and N.N.P.C. v. Tijani [2006] 7 NWLR (Pt. 1007) 29 at 42.
f. A party not served with the hearing date of proceedings leading to a judgment or order made against him is entitled ex debitio justitiae to have the proceedings set aside as a nullity. See Iyoho v. Effiong [2007] 11 NWLR (Pt. 1044) 31 at 52.
g. Where an order, including a judgment of a Court, amounts to a nullity, the Court that made that order in its inherent jurisdiction is empowered to set same aside and an appeal is not necessary for that purpose. See Adegoke Motors Ltd. v. Adesanya [1989] 3 NWLR (Pt. 109) 250 and Menakaya v. Menakaya [2001] 16 NWLR (Pt. 738) 203 at 255.

It is against all the known positions of the law recounted above that the lower Court held in its ruling of 16/10/2018, as follows:
“These facts have not been controverted by the Applicant.
It is curious that the Applicant has not challenged or controverted the Assignor of the Deed of Assignment Mrs. Ebi M. Kia in respect of the controversy over the property in issue.
Exhibits “A”, “B” and “C” which are title documents attached to the Counter-Affidavit of the Claimant/Respondent makes him a holder of superior title to sue the occupiers of the property as persons unknown.
I made a final ruling which is not just an Order, it is same as final judgment and the Court has become functus officio: I find no fraud or misrepresentation of facts in the approach by the Claimant to recover possession of this property over which he holds a Certificate of Occupancy granted by the Governor of Rivers State.
The Application has no merit, it is therefore dismissed.”
(Bold font for emphasis)

When power is given to a Court by a statute, it is expected that when the facts and circumstances are befitting of the exercise of such power, the Court will act in accordance with the dictates of the statute and not abdicate its duties.

Where the provision of a statute is clear and unambiguous, the duty of the Court is to simply interpret the clear provision by giving the plain wordings their ordinary meaning. See Modibbo v. Usman [2020] 3 NWLR (PR. 1712) 470 at 523.

Without any dint of ambiguity, Order 53 Rule 8(1) of the Rules of the lower Court provides:
“8. (1) The Judge may, on such terms as he deems fit, set aside or vary any order made in proceedings under this Order.”
(Bold font for emphasis).
The proceedings leading to the judgment of 27/09/2017, against which the appellant’s application was brought, which led to the ruling of 16/10/2018 was conducted under Order 53 of the Rules of the lower Court. Therefore, in view of the provision quoted above, the lower Court was not correct when it held in its ruling of 16/10/2018 that:
“I made a final ruling which is not just an Order, it is same as final judgment and the Court has become functus officio: …”
Order 53 is not intended to be firm and infallible because it is designed to be within the reach of the lower Court to correct errors it may have committed or generally remake the path of the course of justice, even after it may have given orders for possession of premises or land, which it should not have made, as in this case. That is one of the many errors in the ruling of the lower Court. Contrary to the holding of the lower Court, it had statutory power to reverse its decision of 27/09/2017.

In the same ruling, the lower Court held:
“I find no fraud or misrepresentation of facts in the approach by the Claimant to recover possession of this property over which he holds a Certificate of Occupancy granted by the Governor of Rivers State.”

I have read the ruling several times and I did not find how the lower Court arrived at its conclusion quoted above. The appellant’s motion was to show the lower Court that contrary to the claim of the respondent, at the time the respondent brought his suit for possession of the premises in issue, on the platform of the originating summons, the respondent knew about and of the appellant, with whom the respondent had entered into an agreement respecting shared ownership of the premises in issue. There is a letter attached to the affidavit of the appellant as exhibit T5, which blows the mischief, fraud and pretence of the respondent open. The letter is mentioned in paragraph 12 of the affidavit of the respondent, which is at page 31 of the record of appeal. Exhibit T5 is a letter from the respondent’s lawyer, which is marked “without prejudice”. Respondent’s counsel argued that the letter is inadmissible in evidence.

First, it is the law that objections are not to be taken to documents attached to affidavits as in the case before the lower Court. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688.

Second, there are exceptions to the rule in Section 196 of the Evidence Act, 2011 which provides that documents marked “without prejudice” are not admissible in evidence. In the case of Oando Plc. v. Mr. Oladipo Okpeseyi & Anor. [2021] LPELR-54825(CA), this Court held that where a document marked as such has led to concluded agreement, it may be given in evidence. See also Pacers Multi-Dynamics Ltd. & Anor. v. Ecobank [2018] LPELR–45008(CA) and Grayshot Enterprises Limited v. Minister of Agriculture & Ors. [2002] 9 NWLR (Pt. 771) 1, which held that the contents of such letters are admissible only when an offer which they contain has been accepted. In the circumstances of this appeal, exhibit T5 would be admissible.

In exhibit T5, dated 24/01/2007 (at page 63 of the record of appeal), respondent’s counsel wrote:
“We are in receipt of your letter on the above subject matter and we have our client’s instruction to accept the proposal contained in your letter under reference. We accept to take Block B as proposed by you.
We will therefore request for immediate vacation of possession of the said Block B. But if in the event that your client may wish to rent Block B from our client, we have his instruction to say that the rent per annum for Block B shall with effect from January 2008 be for N2,500,000.00, and our further instruction is to demand for a 3 years rent on a graduated scale, that is 2008 – N2,500,000.00, 2009 – N3,000,000.00, 2010 – N3,500,000.00 respectively.
Following our oral discussions which we have communicated to our client, that is to say that you will forward to us the vendor’s other properties particulars, as our client’s money in the hand of the vendor is now put at over half a billion naira.
We hope you will expedite action along the lines of our proposal before the next adjourned date to enable us dispose off the pending suit against your client.”

Apart from the above, processes filed in suit no. MCR/7R/2007, like exhibits T3 and T4 attached to the affidavit and shown on pages 46-50 of the record of appeal confirm that the appellant has been laying claim to ownership of Block A in the premises in issue and that is to the knowledge of the respondent.

Exhibits T1 and T2 are documents showing that the appellant paid for the premises and has a registered title in her name, as no. 49/49/314 at the Lands Registry at the office in Port Harcourt, dated 04/06/2009, with the consent of the Governor obtained on 29/02/2008. With the documents attached to the affidavit in support of the application before the lower Court, there was proof that the appellant had a claim over the property in issue or at least Block A therein. Thus, the fact that the respondent possesses a certificate of occupancy over the same premises is evidence that the lower Court should not have made the order it made in its judgment of 27/09/2017 and proof that the respondent was not truthful when he deposed in paragraphs 7-9 of his affidavit in support of his originating summons (at page 4 of the record of appeal) thus:
“7. That the Defendants did not have my consent before taking possession of the said property and I don’t know them and did not put them in possession.

8. That I applied for Certificate of Occupancy after fulfilling all necessary requirements, Certificate of Occupancy was issued to me in respect of No 5 Onwuchekwa close Rumuobiakani Port Harcourt date 10th/1/2017 with certificate No. 2016/0337/A000337 in file No. RSL/62887 containing an area approximately 1800.255 square meters, a copy of the said Certificate of Occupancy dated 10/1/2017 and is herewith attached and marked as Exhibit D.

9. That I do not know the name(s) of any person occupying the land that is/are not named in the summons as my attempts to know them failed to yield result.”

The above was deliberate misrepresentation of the facts by the respondent. It was an act of fraud, which may not necessarily be in the criminal sense. The respondent was dishonest in his presentation to the lower Court, as it was copiously demonstrated by the affidavit and further affidavit evidence filed by the appellant before the lower Court. Unfortunately, the lower Court proceeded to determining the issue of title where the contest by affidavit evidence of parties violently conflicted with each other. The contest before the lower Court was not one to be considered on the basis of affidavit evidence, but to be ventilated in a full-blown trial of the issues. In the circumstance, it is my view that the lower Court wrongfully exercised its discretion in its consideration of the application brought to it by the appellant, when it refused appellant’s application, which it should have granted. The lower Court was wrong when it dismissed the application of the appellant, when it should have granted the application.

It should be noted that it is not every slip or error that is found in a judgment that will attract success to such an appeal. It is only when such slip or error is substantial in that it has occasioned a miscarriage of justice that the appellate Court will interfere, and the appeal allowed. See Ipinlaiye II v Olukotun [1999] 6 NWLR (Pt. 453) 148 at 174 and Oladele v. Aromolaran II [1996] 6 NWLR (Pt. 453) 180. In this case, the decision of the lower Court of 16/10/2018 occasioned grave miscarriage of justice and it is the duty of this Court to act as an appellate Court.

Appellant’s application filed on 21/11/2017 ought to have succeeded and granted by the lower Court. This appeal is allowed.

This Court, by the force of Section 15 of the Court of Appeal Act, 1976 (as amended); Order 4 Rules 1, 4 and 9; and Order 7 Rule 5 of the Court of Appeal Rules, 2021, hereby grant appellant’s prayers sought before the lower Court, in the appellant’s motion filed on 21/11/2017, in the following terms:
1. Time is extended within which the appellant may apply to set aside the judgment of lower Court delivered on the 27th September 2017 in suit no. BHC/19/2017 to today.
2. The judgment of the lower Court in suit no. BHC/19/2017 delivered on the 27th September 2017 is hereby set aside.
3. The execution of the judgment of the lower Court in suit no. BHC/19/2017 carried out on 15/11/2017 is hereby set aside in its entirety. The Chief Registrar, as the Sheriff of the lower Court (High Court of Rivers State) shall immediately restore the appellant into possession of Block B of No. 5 Onwuchekwa Close, Rumubiakani, Port Harcourt from where the appellant was dislodged by the Bailiffs of the lower Court.
4. An order is made setting aside the entire proceedings in suit no. BHC/19/2017.
5. (a) Telnet Nigeria Limited, the appellant, is hereby joined in suit no. BHC/19/2017 as the 2nd defendant (in addition to the Unknown person named therein) and shall be served with all processes filed in the suit forthwith.
(b) The respondent shall amend his processes in the suit to reflect the orders made herein.
(c) Parties are also directed to file pleadings to prove their respective cases.
6. The Chief Judge of the High Court of Rivers State shall assign suit no. BHC/19/2017 to another Judge of the Court, different from Justice G. C. Aguma, for determination of the suit, with the status of accelerated hearing.

TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading before now, the lead judgment of my learned brother, OLABODE ABIMBOLA ADEGBEHINGBE, JCA. I agree with the conclusion reached therein and abide by the consequential order made.

PAUL OBI ELECHI, J.C.A.: My learned brother Olabode A. Adegbehingbe, JCA who just delivered the lead judgment, dealt extensively with the issues canvassed by the parties.

I agree entirely with his reasoning and conclusion which represents my own views on all the issues.

It is on that premise that I also allow the appeal and abide by all the consequential orders in the lead judgment.
Appeal allowed.