Alhaji J.A. Odutola Vs Inspector Kayode (1994)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, J.S.C. 

The appellant herein was the plaintiff in the High Court of former Oyo State holden at Ibadan, where he brought an action against the respondent as defendant, claiming general damages for trespass and injunction to restrain the defendant, his agents, servants or assigns from continuing to commit trespass on the land in dispute. The suit was dismissed by the learned trial Judge -Ademakinwa J. The plaintiff appealed from that decision to the Court of Appeal.

In the Court of Appeal, the plaintiff filed his brief of argument but it seems from the record of appeal that the defendants did not. The facts of what transpired in the Court of Appeal may be narrated as follows: On 25th September, 1984, the appeal came up for hearing. The defendant’s counsel was present but the plaintiff was absent as he was not served with the hearing notice of the appeal. Consequently, the appeal was adjourned to the 5th December, 1984.

However, the case was not before the Court of Appeal on that day. It came up for hearing on the following day- 6th December, 1984. Once again the plaintiff was absent while the defendant was represented by counsel.

The registrar of the Court of Appeal informed the lower court that the plaintiff was served by hand on the 27th day of November, 1984. Counsel for the defendant, therefore, applied that the appeal be dismissed but the Court of Appeal struck it out. The plaintiff took no action for about two years. However, he filed a motion on notice on 30th October, 1986 praying the Court of Appeal to relist his appeal. In the affidavit in support of the application, the plaintiff deposed that his address for service was care of his counsel, Chief A.T. Sokan of 302, Ibadan/Abeokuta Road.

That the hearing notice was neither served on Chief Sokan nor on the plaintiff but on one Mrs. Julie Adebule, who was a cashier in one of the plaintiff’s establishment. That Mrs. Adebule failed to deliver the hearing notice to the plaintiff. As the motion to relist the appeal could not be served on the defendant, the plaintiff brought an exparte motion seeking leave to serve the motion on notice on the defendant by pasting at the defendants address at 57/256A Ibadan Grammar School Road, Ibadan. The motion ex-parte was heard by the Court of Appeal on 2nd December, 1986 and was granted as prayed. The motion to relist the appeal was adjourned for hearing on 13th January, 1987. On the adjourned date both parties were represented in the Court of Appeal. Counsel for defendant asked for adjournment to enable him file a counter-affidavit challenging the application to relist the appeal.

The application for adjournment was granted and the motion on notice was fixed for hearing on 11th February, 1987. In the meanwhile the counter-affidavit sworn to by an officer of the Court of Appeal who was in-charge of court processes – Mr. Tajudeen Olaniyan, was filed. In paragraph 3, 4, 5, 6, thereof explanation was given as to why the hearing notice in question was not served on the plaintiff. One of the reasons was that when Chief Sokan refused to accept service on behalf of the plaintiff, on the ground that he had no instructions from the plaintiff to do so, Mr. Tajudeen Olaniyan was allegedly “given a directive” that the plaintiff should be served through his personal address which is 5/7, Alhaji Jimoh Odutola Road, Ogunpa, Ibadan.”

When the application came up for hearing on the adjourned date namely, 11th February, 1987, both parties were represented by counsel. The plaintiff’s counsel Mr. N. O. O. Oke, who moved the motion, stated as follows:-

” …………………..I am not challenging any of the paragraphs of the counter-affidavit by a bailiff of this court. I also agree that my client has done nothing since 1984. I agree that Mr. Sokan who was duly served, signed the notice of appeal. It is also true that when the counsel for applicant who signed the notice of appeal refused to accept service, it was served on an employee of the appellant. I do not know when the appellant got the record of appeal which he handed over to me and from which I prepared a draft brief. Urges the court to grant the application notwithstanding all the admissions made above.”

Without counsel for the defendant responding, the Court of Appeal (Nnaemeka-Agu and Ogundare JJ.C.A, as they then were, and Gambari, J.C.A) made the following ruling, per Nnaemeka-Agu, J.C.A :-

“I do not see any need to call upon the respondent’s counsel in view of the facts disclosed in the counter-affidavit which have been admitted, and the far-reaching admissions by the applicant’s counsel before us. Under our rules, service on a counsel who signed a notice of appeal is good service. And it is manifest that the applicant himself who has done nothing since 1984 is not diligent in the prosecution of his appeal. Our jurisdiction in the matter is equitable: equity helps the vigilant and not the indolent. In the circumstances, I refuse the application to relist the appeal which was struck out in 1984. N50.00 costs to the respondent.”

Feeling aggrieved by the ruling, the plaintiff appealed to this court on 3 grounds of appeal. The plaintiff filed his brief of argument on the 28th June, 1988 but the defendant has failed to file respondent’s brief in reply. The issue formulated in the plaintiff’s brief are as follows-

“2.1. The main issue on this appeal is whether the Court of Appeal was right in law to hold that the appellant was duly served having regard to the materials before it particularly the bailiff’s affidavit which showed that the appellant was not personally served as required by law and the previous order of the Court of Appeal itself.

The secondary issues are:-