Metal Construction (West Africa) Ltd V. D. A Migliore & Ors (1990)

LawGlobal-Hub Lead Judgment Report

KARIBI- WHYTE, J.S.C.

The point of law involved in this ruling is for a determination whether the only ground of appeal, filed in this appeal consists of a question of law alone in which case appellant does not require leave of the court to appeal to this court. Leave is required if it is otherwise. The solitary ground of appeal under consideration with particulars reads:

“The Court of Appeal erred in law in setting aside the order made on 17th April, 1985.

Particulars

(1) The application to set aside the order should have been refused because of the delay of over two months by the applicant in moving to set it aside.

(2) Upon all the facts before the Court of Appeal, it was evident that counsel instructed by Messrs. Kehinde Sofola and Company had appeared before the Federal High Court on behalf of D. A. Migliore, A. Mangili and C. Mangili. Consequently, it was quite proper for the Court of Appeal (a different panel) to order, as it did on 17th April, 1985, that service of the notice of appeal be upon Messrs. Kehinde Sofola and Co., in accordance with the provisions of the Court of Appeal rules.

(3) The Court of Appeal erroneously took the view that the mere fact that service was directed to be effected on the solicitors meant that the solicitors were compelled to act for the parties involved.”

A better understanding of the issues and a proper elucidation and analysis of the ground of appeal can only be after appreciating the background and the circumstances, which gave rise to the formulation of the ground of appeal.

The appellant, who was the plaintiff in the Federal High Court issued out an originating summons dated 23rd December, 1983. The defendants to this summons are D.A. Migliore, A. Mangili, C. Mangili, T. Okeowo. The affidavit in support of the originating summons was sworn to by T. Okeowo. D. A. Migliore, A. Mangili and C. Mangili are not residents in the country. Plaintiff/appellant purported to have served Kehinde Sofola and Co., who sometimes were solicitors to the defendants in another matter. The defendants were not served personally as required by the rules of court. After several appearances by solicitors in the chambers of Kehinde Sofola and Co. on behalf of the defendants, Kehinde Sofola, S.A.N., senior counsel in the chambers brought an application seeking to set aside the service on the ground that he had no instruction from the defendants to appear for them. The learned Chief Judge of the Federal High Court on the 18th December, 1984, granted the application and held that service upon the chambers of Kehinde Sofola & Co. solicitors was not proper service on the 1st, 2nd and 3rd defendants. Appellant appealed to the Court of Appeal against the ruling setting aside the service of the originating summons on Kehinde Sofola & Co. Solicitors.

When the matter came up in the Court of Appeal, on the 11th March, 1985 the learned presiding Justice (P. Nnaemeka Agu, J.C.A. as he then was) (but now of this court) observed and drew attention of appellant’s counsel to the fact that the substantive defendants had not been served with the originating summons. The appeal was accordingly adjourned to the 17th April 1985 to enable counsel to the appellants to consider his position. It was also observed that “as on the subsisting order of court, they, are not being represented by Mr. Sofola & his firm.” “They” referred to the defendants in the originating summons.

On the 17th April, 1985, with Nnaemeka-Agu, J.C.A., as a member of the panel, but Ademola, J.C.A. presiding, the court received a letter from Messrs. Sofola & Co., that they had no instruction from the defendants, to represent them. Miss Ogundare from the same chambers confirmed. Without any argument on the appeal, the court made the following order.

“The papers and motion filed by the applicant be now served on Miss Ogundare of Messrs. K. Sofola & Co. Solicitors, to be forwarded by the said solicitors to the 1st, 2nd & 3rd respondents and upon this being done, the solicitors should inform this court about such service on the respondent. Application adjourned sine die.”

This is the order of the 17th April 1985.

In a motion dated 21st June, 1985 which was moved on the 9th July, 1985, Miss Ogundare sought for an order setting aside the order made by the Court of Appeal on the 17th April, 1985, directing that the motion and papers filed in this appeal be served on the applicant as solicitor acting for the 1st, 2nd and 3rd. respondents herein.