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:-

(a) Whether service on an employee of the appellant was personal service on the appellant having regard to its order that the appellant be served personally.

(b) Whether the Court of Appeal could be heard to hold, as it did on the 11th day of February, 1987 that service on a counsel who signed a Notice of Appeal is good service, when the court itself had after receiving the report that counsel refused service, ordered personal service instead of service through counsel.”

The plaintiff was present in the court at the hearing of the present appeal. But his counsel, the defendant’s counsel and the defendant were absent. The plaintiff stated that he did not see his counsel and that he had no objection to the appeal being heard on the basis of the appellant’s brief which was filed. The court therefore, invoked the provisions of Order 6 rule 8(7) of the Supreme Court Rules,1985, which read-

“When an appeal is called, and it is discovered that a brief has been filed for only one of the parties and neither of the parties concerned nor their legal practitioner appear to present oral argument, the appeal shall be regarded as having been argued on that brief.”

and deemed the appeal as having been argued on the appellant’s brief. In the brief in question it is argued that the lower court was wrong in holding that the plaintiff was served with the notice for the hearing of this appeal since his counsel Chief Sokan rejected service and the court made an order that the service should be effected personally on the plaintiff and no such service was, in fact, executed by the bailiff on him. Instead his employee was served and the employee failed to pass on the hearing notice to him. Reference is made to paragraph 6 of the plaintiff’s affidavit in support of his application for the appeal to be relisted. The paragraph reads-

“6. That instead of serving the hearing notice of the appeal on me through the address I gave for service of processes namely through my lawyer, it was purportedly to one Mrs. Julie Adebule, who was a cashier at one of my establishments, and she never delivered it to me. (see the document attached herewith and marked ‘Exhibit A’).”

It is then contended that the counter-affidavit sworn to by the bailiff (Mr. Tajudeen Olaniyan) confirmed the deposition in the said paragraph 6 of the plaintiff’s affidavit. Further reference was made in paragraphs 5, 7, 8 and 9 of the counter-affidavit to show that personal service on the plaintiff was ordered by the Court of Appeal when it came to its notice that the plaintiffs counsel refused to be served with the hearing notice of the appeal. It is consequently submitted that the Court of Appeal was wrong to have held that there was good service on the appellant through his counsel. Failure to effect personal service on the plaintiff as was ordered by the lower court, it is canvassed, rendered the proceedings of the court on the 6th day of December, 1984, whence the plaintiff’s appeal was struck out, a nullity on the authority of Criag v. Kanseen, (1943) 1 All E.R. 108 and Absi v. Mends, 2 W.A.C.A. 238.

It is also submitted that the non-service of the hearing notice on the plaintiff is a violation of the appellant’s fundamental rights as enshrined in section 33 subsection (1) of the 1979 Constitution of the Federal Republic of Nigeria. Therefore, it is canvassed that the proceedings of 6th December, 1984 being a nullity, the Court of Appeal erred in law in not relisting the appeal as per the plaintiff’s application.

I think it pertinent to quote in extenso the counter-affidavit filed in opposition to the plaintiff’s application for his appeal to be relisted. It reads thus-

“I, Tajudeen Olaniyan, male Christian, Civil servant of Court of Appeal, Officer in-charge of court processes within Ibadan municipality make oaths and declare as follows-

1. That paragraph 6 of the affidavit sworn to by Alhaji Jimoh Odutola on the 30th day of October, 1986 is true.
2. That paragraphs 5, 7, 11, 14, 15, 16 & 17 thereof are not true.
3. That the hearing notice was issued to the address given in the notice of appeal as care his solicitor, Chief A.T. Sokan, 302, Abeokuta road, Apata, Ibandan.
4. That Chief A.T. Shokan refused the service of the hearing notice indicating that the appeal is to be heard on Tuesday, the 25th September, 1984 on the ground that he (Chief A.T. Sokan) had no instruction of the appellant (Alhaji Jimoh A. Odutola) to receive the hearing notice. The photocopy of the hearing notice is attached as exhibit 1.
5. That the refusal of the hearing notice by Chief A.T. Sokan, the court was notified accordingly on the 25th September, 1984 and the court gave a directive that Alhaji Jimoh Odutola (appellant) should be served through his personal address which is 5/7. Alhaji Jimoh Odutola road, Ogunpa Ibadan as stated on the record of appeal. Photocopy of the memo sent from the court to the registry is attached as exhibit 2.
6. That according to the directive of the court the hearing notice for 5th December, 1984 was issued to Alhaji Jimoh Odutola of 5/7 Alhaji Jimoh Odutola road, Ogunpa, Ibadan. Photocopy of the hearing notice is attached as exhibit 3.
7. That the reason for personal service was due to the fact that changes of counsel can take place at any stage of the appeal but litigants remain same.
8. That Alhaji Jimoh Odutola came to the registry to enquire what has happened to his appeal before the motion in question was filed, and was informed of the personal service on him and also shown the despatch book in which Mrs. Julie Adebule signed her name.

Photocopy of the paper is attached as exhibit 4.

9. That the hearing notice was served on Alhaji Jimoh Odutola through his employee.
10. That I swear to this affidavit in good faith.

(Sgd.) T. Olaniyan

DEPONENT.”

Now, the plaintiff’s application was brought under Order 3 rule 25 (2) of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990 which provides-

“(2) When an appeal has been struck out owing to the non-appearance of the appellant the court may, if it thinks fit, and on such terms as to costs or otherwise as it may deem just, direct the appeal to be re-entered for hearing.”

It is very clear from the foregoing that the power of the Court of Appeal to grant an application under Order 3 rule 25 (2) is discretionary. Therefore, for an appeal against the exercise of the discretion, by the Court of Appeal, to succeed it must be shown by the appellant that there has been a wrongful exercise of the discretion in that the court had acted under a mistake of law, or in disregard of principle, or under a misapprehension of the facts, or has taken into account irrelevant matters, or on the ground that injustice could arise or that no weight or no sufficient weight has been given to relevant consideration, or when, as is usually said, the discretion was not exercised judicially -See Kudoro v. Alaka (1956) 1 F.S.C. 82; (1956-58) SCNLR 255; Solanke v. Ajibola (1969) 1 N.M.L.R. 253; Odusote v. Odusote, (1971) 1 ALL N.L.R. 221 (New Edition) and Awani v. Erejuwa II (1976) 11 S.C.307.

In the present case it is clear that hearing notice of the plaintiff’s appeal did not reach the plaintiff because his counsel rejected service. The refusal to accept service is a default of counsel and not the plaintiff. It will, in my opinion, therefore, be wrong to visit the default on the plaintiff. The plaintiff’s counsel might have had a good reason for rejecting the service. His fees or instructions might not have been perfected, or no instructions were at all given to him by the plaintiff. In such a case counsel will be justified to refuse to do anything on behalf of a client that had failed to perform his (the client) obligation to the counsel. Although after service was rejected by Chief Sokan there was a directive given to the bailiff to serve the plaintiff personally, it is not clear from the bailiff’s counter-affidavit, nor was it stated therein or in the record of appeal, who was it that ordered personal service on the plaintiff. Be that as may, the directive was not albeit carried out correctly. Instead of the plaintiff being served, his employee was served. The plaintiff is a living person and not an incorporated body or association the service upon which can be effected over its servant or employee or place of business.

It has been held that where the service of any notice of a proceeding is required to be given, failure to notify any party to the case is a fundamental omission which entitles the party not served and against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for making the order has not been fulfilled- see Obimonure v. Erinosho, (1966) 1 ALL N.L.R. 250 at p. 252; Scott-Emuakpor v. Ukavbe, (1975) 12 S.C. 41 at p. 47 and Odita v. Okwudinma, (1969) 1 ALL N.L.R. 228 at pp. 231- 232 where Lewis, J.S.C. made the following observation –

“In our view the failure to serve notice on the appellant or alternatively to obtain an order dispensing with such service renders the proceedings a nullity, and not a mere irregularity as Mr. Ohen submitted, as the appellant was entitled as a person directly affected to notice of the proposed application. In Criag v. Kanseen, (1943) 1 ALL E.R. 108 Lord Greene, M.R. at page 113 said-

“Those cases appear to me to establish that an order which can properly be described as a nullity is something which the person affected by it is entitled ex debito justitiae to have set aside. So far as the procedure for having it set aside is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order, and that an appeal from the order is not necessary ………………The question we have to deal with is whether the admitted failure to serve the summons upon which the order in this case was based was a mere irregularity, or whether it was something worse, which would give the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England.”

Another reason given by the Court of Appeal for refusing to grant the plaintiff’s application is that the plaintiff had failed to be diligent since he did not take action ever since the appeal was struck out in 1984. The application to relist the appeal was filed on 24th November, 1986. That is nearly two years after the appeal was struck out. No explanation was given in the affidavit in support of the application.

Furthermore counsel for the plaintiff admitted in the Court of Appeal that his “client had done nothing since 1984.” True, the plaintiff was at fault for not taking any action to relist the appeal timeously. But the overriding consideration is that the proceeding in which the appeal was struck out was, on the authorities cited above, conducted by the lower court without jurisdiction and is ab initio null and void. So that in effect it is as if the proceeding did not take place at all. In that case, it cannot be said that time began to run against the plaintiff in applying to relist the case. The case was in fact never removed from the list since the proceedings that purported to lead to that order is a nullity. The jurisdiction of the Court of Appeal on plaintiff’s application is statutory, as per Order 3 rule 25 (2) of the Court of Appeal Rules, and not equitable. It is, therefore, wrong for the lower court to apply the equitable doctrine of helping the vigilant and not the indolent against the plaintiff.

It is well-established principle of law that all judicial discretion must be exercised according to common sense and according to justice, and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal court to have it reviewed.

In the circumstances of this case the Court of Appeal was in error in refusing the application to relist the appeal in accordance with the provision of Order 3 rule 25 (2) of the Court of Appeal Rules, especially as there was no evidence that the plaintiff knew that the appeal was fixed for hearing on the day in question. It cannot, therefore, be denied that the dismissal of the appeal in the circumstances had occasioned a miscarriage of justice. In my opinion, it would be wrong for this court to hold that the lower court was justified in refusing to grant the plaintiff’s application or that it was exercising its discretion properly and judicially in so acting.

In the result, the appeal succeeds and it is allowed. The ruling of the Court of Appeal refusing the plaintiff’s application is hereby set aside. It is ordered that the appeal be re-entered for hearing by the Court of Appeal, at Ibadan. The plaintiff is entitled to the costs of this appeal assessed at N1,000.00.

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Other Citation: (1994) LCN/2649(SC)