Akad Industries & Anor V. Alhaji Lasisi Olubode (2003)

LawGlobal-Hub Lead Judgment Report

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, J.C.A. 

This appeal is against the decision of the Lagos High Court (Coram: Ade Alabi, J.) in the ruling of 12th February, 1999, which dismissed the defendants/appellants application to set aside the judgment of 19th June, 1996, in the sum of N100,000.00 with interest, entered in default of appearance.

The original claim before the lower court was N608,587.80; a judgment for the sum of N508,587.80 was entered in favour of the plaintiff/respondent upon admission. In the course of hearing the disputed claim in the sum of N100,000.00, precisely at the point of cross-examination of the plaintiff/respondent the lower court on 2nd April, 1991, before adjourning further hearing to 2nd May, 1996, ordered that, “hearing notice shall be issued and served on the defendant’s counsel and whoever serves the hearing notice shall depose to an affidavit of service.”

The said hearing notice was served on one Miss Basirat Salawu as deposed in the affidavit of service. The lower court reacted to an application to vacate the judgment of 19th June, 1996 as per its ruling of 12th February, 1996, which dismissed the application on the ground that the defendants/appellants’ counsel notwithstanding the service upon him of the hearing notice did not have good reasons for defaulting to appear at the further hearing of the matter.

Dissatisfied with the decision in the said ruling of 12th February, 1996, the defendants/appellants have appealed from the said decision by filing a notice of appeal dated 26th February, 1999, raising thereof three grounds of appeal.

The briefs of argument have been filed and exchanged between the parties.

The appellants have formulated in their brief of argument two issues for determination as follows:
“1. Whether or not the finding that the order of the Honourable lower court of 02/04/96, ordering that the appellant’s counsel in the said court be served with a hearing notice of the on going trial was complied with or obeyed was correct.”
“2. Whether or not the Honourable Judge of the lower court exercised his discretion to dismiss the appellants’ motion for setting aside correctly.”

The respondent on the other hand has raised four issues for determination in his amended brief of argument and they are as follows:
“1. Whether an order of court for service of process on counsel necessarily connotes services of such process strictly on the person of such counselor on his chambers, through anyone who has right or duty to receive service of such process for and on his behalf.”

2. Whether or not, the service of the hearing notice dated 02/05/96, on the solicitors for the appellants Mr. Deji Adagunodo through one Miss Basiratu Saliu, who before accepting the service revealed to the process server her relationship with the lawyer and undertook to deliver the said hearing notice could be said to have satisfied the order of court, dated 02/04/96, directing the said services on counsel”

“3. Whether or not, having regard to the circumstances that gave rise to the application for setting aside of the court’s ruling dated 12/02/99 and the conduct of the appellants in the course of the proceedings in the matter the trial court has exercised its discretion judicially and judiciously in refusing the said application.”

“4. Whether having regard to the new evidence before the court as admitted by the court in its ruling dated 7th December, 2000, it can be said that the respondent has proved the service of the hearing notice, dated 02/05/96, on Barrister Deji Adegunodo on 02/06/96 through Miss Basiratu Saliu.”

The appellants have filed an amended reply brief.

The two issues for determination raised by the appellants in the matter are comprehensive and stem from the ruling and the grounds of appeal as per the notice of appeal and are capable of resolving the appeal. The respondent’s issues one and two come within the ambit of the appellants’ issue one, while the appellants’ issues two is conterminous with the respondents’ issue three and four.

In discussing the matter, I am to be guided by the issues for determination as identified by the appellants, while adverting to the points taken by the respondent in his amended brief of argument.