Alhaji Isa Dahuwa V. Adegbamiye Adeniran (2002)

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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.

He then urged the court to allow the appeal.

The respondent on the issue of fair hearing submitted that the appellant refused and/or neglected to appear to defend the suit when appearance had been entered on his behalf by his counsel and so was no longer positioned to raise and rely on the principle of audi alteram partem and fair hearing. On the question of non-service of the amended writ of summons the respondent opined that the court below must have been satisfied of its service before commencing the hearing and even then that no miscarriage of justice was occasioned to the appellant.

The court was asked to reject as unsubstantiated the contention that Mr.Fasade Olowu, counsel to the appellant was not instructed to act for the appellant. See Richmon v. Branson & Son (1914) 1 Ch. D. 968 per Warrington IC, 974-975.

On issue two the respondent has again submitted that the respondent’s evidence in proof of his case remained unchallenged by the appellant in his brief. He submitted that it amounted to a great error not to have challenged the facts and the findings made on them. See U.T.C (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 268; Cardoso v. Daniel (1986) 2 NWLR (Pt. 20) 1 at 85.

To substantiate the contention on the appellant’s error in failing to challenge the evidence of the respondent he referred to Agoma v. Guinness (Nig.) Ltd. (1995) 2 NWLR (Pt. 380) 672 at 687-688; Obodo v. Ogba (1987) 2 NWLR (Pt. 54) 1; Narumal & Sons (Nig.) Ltd. v. N.B.T.C Ltd. (1989) 2 NWLR (Pt. 106) 730 at 742. Having underlined the point that the appellant was out to overreach, the court was urged to dismiss the appeal.

This appeal within the compass of the issue for determination has raised a fundamental question of serving hearing notices and also an amended originating process on a party as conditions precedent to be effected before the court can have the competence and jurisdiction to entertain such a matter as the instant one. This is so as ordinarily the court has no jurisdiction over a person not properly served excepting where he has voluntarily submitted to the jurisdiction of the court. It is settled law that failure to serve a party as the appellant here the hearing notice or originating process would without doubt render the proceedings void for want of jurisdiction and it is not a curable irregularity. See A.C.B. Plc. v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt. 405) 26; Haruna v. Ladeinde (1987) 4 NWLR (Pt. 67) 941 at 953 to 954; Union Beverages Ltd. v. Adamite Co. Ltd. (1990) 7 NWLR (Pt. 162) 348; Obimonure v. Erinosho (1966) 1 ANLR 250 at 252. All the decisions in the above cited cases agree that where there is proof that the originating process or hearing notice that is required by the rules to be served is not served, then the proceedings founded on such process as in the instant matter are liable to be declared void. It is not invariably the case for such a party in such circumstances to contend that he was denied fair hearing and rightly for that matter. In the light of the facts of the instant matter I may also state that service of the processes including hearing notices (meant to be personal) and amended writ of summons has to be personal except that with the leave of the court such processes could be served by substituted services. There were pieces of evidence from the respondent of the substituted service of the motion to relist the instant matter after it was struck out that was when personal service proved abortive. In so far as it was done in compliance with the court’s order, it is not open to contest.

In the instant matter the appellant alleged that no processes including the writ of summons in the matter was ever served on him personally notwithstanding that one Mr. Fasade Olowu, Esq. of counsel entered an appearance on his behalf. The court below, it would appear did not accept the submission. It is to be noted that thereafter the said counsel took no other steps in the matter. Neither the appellant nor his said counsel appeared or filed any processes in the matter before judgment. In fact, the appellant contended that Mr. Fasade Olowu of counsel was not retained by him for the matter.

Thus introducing another dimension to the matter and the court below rightly in my view and to avoid getting distracted by a maze of collateral facts declined to be drawn into the matter.

All the same I must perhaps pause here to observe that where as in this matter the court has cause to order that an affidavit impugning on counsel and/or bailiff of the court in a matter as was the case in the instant supporting affidavit to set aside the default judgment be served on them it is my view that it behoves the said court to make categorical finding on the issue one way or the other and not to leave that vital issue practically on the lurch as here. The court below after the Fasade Olowu of counsel filed his affidavit on the vexed issues of representation, entry of appearance and service of the statement of claim on behalf of the appellant, the court below ought to have made a clear definitive findings on the issues and not leave the conclusion to be a matter to be inferred from the import of its judgment. It may well have obviated the whole rigmarole that has befallen this matter from the court below to this court and to the Supreme Court back to this court. Indeed,no further reference was made to the issues throughout its judgment. And this court is therefore precluded from making surmises as to what the findings would otherwise be. To properly grasp the import of the appellant’s case in this matter I have decided to set out in chronological order the events that culminated in the default judgment being entered in favour of the respondent. After the service of the writ and the entry of appearance and the service of the statement, the record of proceedings of the trial court shows as follows:

1. On 9/4/79: summons for directions was reported not served on the defendant i.e. the appellant and the matter was adjourned to 30/4/79.
2. On 30/4/79: the summons for direction served on counsel for the defendant/appellant and the matter was adjourned to 25/7/79 and 26/7/79 for hearing and an order for hearing notice to be served on the defendant/appellant personally.
3. On 25/7/79: the plaintiff/respondent and his counsel were absent and the matter was struck out.
4. On 3/9/79: motion to relist the suit came up and it was adjourned to 17/9/79 unserved.
5. On 17/9/79: again, no proof of service of the motion to relist the suit and it was adjourned to 8/10/79.
6. On 8/10/79 and again the motion to relist the suit was not served and it was further adjourned to 15/10/79.
7. On 15/10/79 and yet again, no proof of service of the motion to relist the suit and it was adjourned to 29/10/79.
8. 29/10/79: the motion to relist the suit was not served and the court ordered that the parties themselves be served since the matter was struck out; it was adjourned to 10/12/79. The next date on record was 7/1/80.
9. On 7/1/80: an ex-parte application for an order for substituted service of the motion to relist came up and was granted and the matter was adjourned to 21/1/80.
10. On 21/1/80: affidavit of service showed that the motion to relist the suit was posted on the uncompleted building on the land in dispute and the motion to relist was granted and the matter adjourned to 4/2/80 for mention.
11. On 4/2/80: plaintiff’s counsel asked for a date for hearing and it was adjourned to 3/4/80 for hearing.
12. On 3/4/80 hearing commenced and PW 1,PW2 and PW3 testified and the matter was adjourned to 8/5/80.
13. On 8/5/80 PW4 testified and address and amendment of the first leg of the claim was granted and the respondent ordered to file amended writ within four days.
14. On 5/6/80 judgment in the matter in favour of the plaintiff/respondent was given.

Save to add that apart from 25/7/79 the plaintiff/respondent was present and the defendant/appellant absent in court for the above proceedings.

Quite clearly on 30/4/79 the court below upon adjourning the matter to 25th and 26th July, 1979 for hearing ordered that hearing notice be served personally on the appellant. That order was not given effect to and the appellant was not so served. The effect of the non-compliance being fundamental had great repercussion to the proceedings thereafter and in my view remained so throughout the proceedings. Not only that the non-compliance offended the rules of natural justice in that the appellant was not heard at all in the matter, it tantamounted to want of fair hearing as the opportunity to present his case was denied him. See Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc (2000) 5 NWLR (Pt. 658) 568 at 582 and Okafor v. Igbo (1991) 8 NWLR (Pt. 210) 476 at 485 per Uwaifo, JSC. So that it is immaterial to contend that thereafter that is to say on the non-compliance with the order that the proceedings were eventually regularized. And as I opined above the court below was without the necessary jurisdiction to proceed to hear and determine the matter.

The appellant also alluded to the amended writ of summons that took place after the address to bring the claim in line with section 40 of the Land Use Decree. This was on 8/5/80. The appellant raised an objection to the informal way of the amendment which was oral. It was not by a substantive notice of motion as prescribed by Order 25 of the rules. I think that even though Order 25 of the rules required a formal motion, the instant oral application was not such a non-compliance as to vitiate the leave summarily granted by the court to amend as the non-compliance was too peripheral as not to affect the heart of the rules of procedure. It was within the inherent power of the court so to order. But the same cannot be said for failure to serve the appellant the amended writ of summons – the originating process. The importance of serving the amended writ of summons on the appellant cannot after the amendment be over emphasized, so long as he remained a party in the suit. It bordered on breach of natural justice and fair hearing to put the appellant on notice even by way of substituted service as already ordered in the proceedings.

There can be no doubt that the entire proceedings had thereby become incurably contaminated. I now go on to consider in depth the application to set aside the said default judgment.

Perhaps, I should have observed much earlier that in civil cases where a party did not appear as in this matter he would have the judgment entered against him in default of appearance set aside as it is not on the merits even though the judgment is otherwise a final judgment. The court has the inherent power to set it aside. In Evans v. Bartlam (1937) AC 473 at 480 Lord Atkin encapsulated the principle thus:

” … unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by failure to follow any of the rules of procedure.”

Local authorities on the issue have abundantly approved the above cited dictum. See Nwankwo Eze & Anor. v. Abiogbolu Ekeru (1974) ECSLR (Vol.4) 85; Ugwu v. Nwansi & Ors. (1961) ANLR 438 per Idigbe, JSC, Okorodudu Olomu & Anor. v. Shema & Ors. (1962) 2 ANLR 1.

This settles the contention whether the appellant could re-open the issue of the default judgment by seeking to set it aside as posed by the respondent in the brief.

It is important to note that a default judgment may be regularly or irregularly entered against a party. Any misconception as to the distinction between them would as in this matter becloud the court’s attitude to an application to set aside the default judgment. This confusion, with respect imbued the formulation of issue three by the respondent in this matter as he contended that the findings of fact and evidence given by the respondent were not countered. Also the appellant had not exhibited his defence on the merits. And so the respondent had queried his entitlement to the relief sought. The respondent’s apparent misconception stemmed from not appreciating that the instant default judgment was entered irregularly and therefore liable to be set aside by the court ex debito Justitiae whether or not the appellant raised any case on the merit. The situation would be different where the default judgment was regularly entered against a party in which case other considerations to set aside the default judgment had to be entertained. The considerations to be satisfied are set out in Williams v. Hope Rising Voluntary Funds Society (1982) 1All NLR (Pt.1). Not being relevant I have not attempted to set out these considerations.

There seems from my line of reasoning above that the application to set aside the default judgment was well founded and ought to have been granted.

The appeal is therefore meritorious and should be allowed. I therefore allow it. The judgment of the court below in this matter is hereby set aside. In its place is substituted by the decision of this court. This case is therefore remitted to Chief Judge to assign to another Judge to commence de novo after the pleadings must have been filed and exchanged between the parties. The appellant is entitled to the costs of this appeal fixed at N7,500.00.

Other Citations: 2002)LCN/1167(CA)