Akande v. Jegede & ORS (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Lead Judgment)

This appeal is against the judgment of the Court of Appeal, Lagos Division delivered on 26th day of June, 2015 or Court below or lower Court, Coram: Joseph Shagbaor Ikyegh, Chinwe Eugenia lyizoba and Abimbola Osarugue Obaseki Adejumo JJCA, setting aside the ruling of O.A. Williams J. of the High Court of Lagos State delivered on 29th day of July, 2010.

BACKGROUND FACTS
The 1st respondent herein was the appellant in the Court below. On the 29th October, 2007, the 1st respondent as claimant filed some writs of summons, statements of claim and all the accompanied processes at the Ikeja High Court Registry being ID/1387/2007, ID/1388/2007 and ID/1389/2007. In all of the suits above stated which mainly were for libel against 4 defendants jointly and severally, the appellant herein (in Suit number ID/1386/2007) was the 4th defendant.

​After the Writ of Summons herein was sealed, issued and processed for service on the defendant, the claimant paid the statutory fees for service and thereafter the processes were assigned to Sheriffs (Mr. Popoola William and

Mr. Adeniji Adetoyosi) of the High Court in accordance with the rules of Court to effect service thereof. The Sheriff served the appellant the 2nd, 3rd and 4th respondents herein on 06 November, 2007 with the originating processes and deposed to affidavits of service.

Three years later in the course of prosecuting this matter on 07 January, 2010, the appellant, 2nd 3rd and 4th respondents who at that time retained the services of one law firm suddenly filed a notice of preliminary objection and applied that the names of the appellant, 2nd and 4th respondents be struck out because the originating processes were not served on them personally.

In the meantime as at the 07 January, 2010, the 3rd respondent, employers of Yinka Oluwole (who informed the sheriffs that she was authorised by the 2nd 3rd and 4th respondents to collect and sign for processes), the 2nd and 4th respondents who did not contest service of the originating processes effected on 06 November, 2007 sat on the fence and took no steps in the proceedings at all.

The 1st respondent as respondent to the objection by the appellant, 2nd, 3rd and 4th respondents contested the application to

strike out the names of the appellant/2nd and 3rd respondents. By a considered ruling delivered on 02 June, 2010, the trial Court O.A. Williams J., of High Court number 32 Ikeja High Court Commercial Division, sitting at Tafawa Balewa Square, Lagos refused the appellant, 2nd and 4th respondents’ application to strike out their names. Rather, the learned trial judge found the services of the originating on the 2nd and 4th respondents only irregular set them aside whilst service of the originating processes on the appellant was held as regular. Thereafter since the 1st respondent (as claimant) had filed and served the pretrial conference processes the matter by consent of all the counsel was adjourned to 12 July 2010 for pre-trial conference.

Based on the findings of the learned trial judge made on 02 June, 2010, referred to in paragraph 1.05 above the 1st respondent by a motion exparte dated and filed on 07 June, 2010 prayed for the following reliefs; 1. Extension of time within which to apply for renewal of the Writ of Summons herein dated and issued on 29 October, 2007. 2. Renewal of the Writs of Summons herein dated and issued on 29 October, 2007 for a period of 3 months from the date of the granting of the order for renewal. 3. Substituted service on the 1st and 3rd Defendants of the Writs of Summons, Statements of Claim, Claimant’s List of Witnesses, Claimant’s Witnesses depositions on oath, Lists of Exhibits the Claimant will rely upon at the trial of the substantive matter, pre-trial conference forms 17 and 18, and all other Court processes by pasting the Court processes at the 1st and 3rd Defendants last known address being the main entrance/door office of their employers that is, Carriage Concepts Communications Limited, (Publishers of “News Star” Magazine) 13A, Ladipo Bateye Street, G.R.A, Ikeja, Lagos State. See page 35-57 of the record of appeal.
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The motion exparte referred to in paragraph 1.06 above which affected the 2nd and 4th respondents only was argued on 12 July, 2010 thereafter. By a ruling delivered on 29 July, 2010, the learned trial judge refused thus dismissed all the reliefs stated and endorsed in the application and adjourned the matter to 20 October 2010 for pre-trial conference. By the ruling, the 1st respondent (as claimant) was precluded, refused and restrained from proceeding against the 2nd and 4th respondents with respect to the libel matter any longer.

The 1st respondent and his legal team met reviewed the implications of the ruling delivered on 29 July, 2010 one of which is that in spite of the 1st respondents payment for service of the originating processes which was not served accordingly by a staff of the Court (the sheriff) but which the 2nd and 4th respondents stated and admitted were served on a staff of the 3rd respondent (Yinka Oluyole) on their instructions. The 1st respondent was thus shut out/precluded completely, from putting forward his case against the 2nd and 4th respondents in this suit any longer since he could not renew the life span of the writ of summons any longer.
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The 1st respondent became dissatisfied with this development arising from the ruling delivered by the trial Court on 29 July, 2010. Thereafter the 1st respondent instructed counsel to lodge and file an appeal against the ruling delivered on 29 July, 2010. After drafting and setting the notice and grounds of appeal counsel found out that the appeal being interlocutory also contains grounds of law, grounds of law, grounds of facts, grounds of mixed law and facts sought and obtained the leave of the trial Court before the filing of the notice and grounds of appeal. The application for leave is dated/filed on 6th August, 2010 and the lower Court granted the leave on 20th October 2010. See pages 67-94 of the record of appeal. The notice and grounds of appeal was filed on 21st October 2010 and there were three grounds of appeal.

On the 21/2/2022 date of hearing, appellant and counsel were absent though served on 15/2/2022 and so the appellants’ brief was settled by Spencer O. Ohwofa Esq and filed on 25/2/2010 was deemed as argued. The appellant had distilled a sole issue for determination, viz:

Whether the Court below was right in setting aside the ruling of Honourable Justice O.A. Williams of the High Court of Lagos State, delivered on 2Srh day of July, 2010 in view of Order 6 Rules 6 & 7 of the High Court of Lagos State (Civil Procedure) Rules, 2004 and the circumstances of the case? (Grounds 1 & 2 of the appellant’s Notice of Appeal).

​Learned counsel for the 1st respondent, A.R. Fatunde Esq adopted the brief of argument filed on 8/4/2016 and in it were raised two questions for determination, which are thus: