Alhaji Isa Dahuwa V. Adegbamiye Adeniran (2002)

LawGlobal-Hub Lead Judgment Report

CHUKWUMA-ENEH, J.C.A. 

This appeal is from the decision of Desalu, J. of the Lagos State High Court, Ikeja Judicial Division delivered on 5th June, 1980 in favour of the plaintiff. Thus, it granted all his claims against the appellant. At the court below the plaintiff/respondent claimed against the defendant/appellant three main reliefs consisting of:

“1. A declaration of statutory right of occupancy to all that piece or parcel of land situate lying and being at Dopemu, Agege which parcel of land is sufficiently described on survey plan No. L & L/D: 4374 dated 5th November, 1977 to be filed later;

2. N500.00 damages for trespass committed by the defendant on the land between March and April 1978;
3. A perpetual injunction restraining the defendants, their agents and their privies from ever entering on the said land and committing further acts of trespass thereon … pages 1-3 of the records.”

Dissatisfied with the decision the defendant filed his appeal upon four grounds of appeal. The parties later filed and exchanged briefs of argument. The appellant in his brief of argument identified one issue for determination; and it reads as follows:

“Whether the proceedings at the trial court culminating in the judgment dated 5th June, 1980 are vitiated for non compliance with the relevant rules of court relating to service and constitutional provisions on fair hearing.”

The respondent raised three issues for determination as follows:

“1. Whether the judgment of 5th June, 1980 delivered by Desalu, J. (as he then was) is a default judgment. and if so whether the appellant can reopen the issue (i .e. of setting aside the judgment of 5th June, 1980 as a default judgment) already determined by this Honourable Court in the appellant’s earlier appeal decided in Alhaji Isa Dahuwa v. Adegbamiye Adeniran (1986) 4 NWLR (Pt. 34) 264.

2. Whether the judgment of 5th June, 1980 is in breach of the principle of fair hearing having regard to the respondent’s failure to file a defence and testify (if need be) having entered an appearance through his solicitors, Messrs Fasade Olowu & Co.
3. Whether the judgment of 5th June,1980 based on the finding of facts and evidence adduced at the trial court can be set aside when the said finding of facts and evidence have not been challenged by the appellant in this appeal.”

Before the arguments of the parties in the briefs some salient facts of the matter have to be put in perspective for the appreciation of the matter. The appellant having been served the writ of summons his counsel Mr. Fasade Olowu entered appearance. The respondent later filed the statement of claim also duly served on the appellant’s solicitor but the appellant never filed his defence.The record shows that on 25th July, 1979 the matter in its entirety was struck out on both parties being absent. The matter was however re-listed, the process for the re-listment of the matter was posted at the defendant’s building situated on the said land in dispute by the order of the trial court after personal service could not be effected. The matter came up on 4/2/80 for mention and was set down for trial after suffering a number of adjournments to 3/4/80 for hearing. Neither the defendant/appellant nor his counsel ever appeared even for once in the matter.

The plaintiff proceeded to call evidence and closed his case after four witnesses testified in the matter.

The defendant/appellant appeared agitated into action by the order of bench warrant for his arrest issued in execution of the judgment of the trial court and so he appeared for the first time on 14th September, 1983. Naturally, to show seriousness the appellant commenced proceedings for extension of time to set aside the said judgment and prayed to set aside the said judgment before the court below which court in view of a serious averment denying service of the writ of summons on the defendant/appellant in the supporting affidavit rightly in my view ordered that the said affidavit impugning on the learned counsel and the bailiff be served on the bailiff who effected service of the writ and Mr. Fasade, the appellant’s counsel who entered appearance in the matter. The defendant/appellant had contended that on 8th May, 1980 as the record also has confirmed that an amended writ of summons filed on the order of the court below on 12th May, 1980. There was no service of the amended summons on the defendant/appellant. This appears to be the trump card of the defendants/appellants case in this appeal as well as the fact that when the matter was eventually re-listed on 21/1/80 and was adjourned to 4/2/80 for mention on which date respondent asked for a hearing date which was fixed for 3rd April, 1980 that no hearing notice of the hearing date was communicated to the defendant/appellant. The application to set aside the judgment at the end of the day was dismissed on 3rd of December, 1984. The appellant appealed to this court on a notice of appeal containing one ground.

Other additional grounds of appeal were later added. At the hearing of the application the respondent entered a preliminary objection as to the competency of the grounds of appeal and both parties proffered their arguments before this court. In the result, the court upheld the objection to the effect that all the grounds of appeal were declared incompetent, the grounds and the appeal itself were both struck out.

The matter did not rest there as the appellant appealed from the said ruling of this court to the Supreme Court which in a ruling delivered by that court on 17th July, 1990 ordered this court to hear and determine the dismissed appeal on the merits. The court on 18th November, 1992 in a considered ruling granted leave and enlarged time for the appellant to appeal against the judgment of the court below delivered on 5th June, 1980.

It is on the backdrop of the above facts coupled with the fact that the landed property in dispute was being occupied by the appellant and family that the appellant has stood his ground to contend that the proceedings culminating in the judgment of 5/6/80 was vitiated being in contravention of the rules of court on service, amendment and constitutional provisions of fair hearing as well as order 25(4) of the 1972 Rules on amendment of pleadings and Order 42(1) of the 1994 Rules on the manner of making by motion both rules of the Lagos State High Court (Civil Procedure) Rules. Reliance was also put upon Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377 to urge giving the provisions their ordinary meaning. And on Union Beverages Ltd. v. Adamite Co. Ltd. (1990) 7 NWLR (Pt. 162) 348 to show that no valid appearance followed without proper service. On non-service where required as in the instant case the appellant referred to Caribbean Trading and Fidelity Corp. v. NNPC (1991) 6 NWLR (Pt. 197) 352; Nipol Ltd. v. Bioku Investments & Property Co. Ltd. (1992) 3 NWLR (Pt. 232) 727 at 753 C-D on the effect of

non service of process where so required as an incurable irregularity; Leedo Residential Motel Ltd. v. B.O.N. Ltd. (1998) 10 NWLR (Pt.570) 353; Abidogun v. Arowomokun (1990) 6 NWLR (Pt. 158) 618 at 629 to the effect that a decision on the merits is always preferred.