Akinsola Dawodu & Anor V. F. O. Ologundudu & Ors (1986)
LawGlobal-Hub Lead Judgment Report
NNAEMEKA-AGU, J.C.A.
This is an appeal by the second defendant against the ruling of Ayorinde, dated the 21st day of November, 1985. This matter first came before this court as an application for a stay of execution dated the 30th day of January, 1986. Because of the nature of the issues involved, this court decided to hear the appeal on the bundle of papers exhibited to the motion paper and such other relevant papers as the parties may deem it necessary to file rather than hearing the issues twice. So with the consent of counsel on both sides the application was converted into an appeal. Briefs were duly filed by counsel on both sides.
At the beginning of the hearing of the appeal there was a minor argument as to whether the appeal was filed within time as the notice of appeal Exh. C to the original application carries the date 30th of January, 1986. The learned counsel for the appellant was able to satisfy us that the appeal was filed on the 5th of December, 1985 as per Exh. C to the further affidavit of Mukaila Bello sworn to on the 22nd of April, 1986; that is, on the 14th day of the ruling appealed against.
The facts of the case bring out vividly the some-what important points of procedure that fall to be decided in this appeal. On the 25th of May, 1974, the plaintiffs commenced an action against the first and 2nd defendants for a declaration of title to land and N200.00 damages for trespass. The writ of summons was served personally on the 2nd defendant on the 7th of June, 1974. He duly entered an appearance through his counsel whose address was endorsed on the memorandum. Pleadings were duly filed and exchanged.
Thereafter trial commenced before Oluwa, J., at the Ikeja Division of the Lagos State High Court. When the learned Judge was transferred to the Lagos Division of the High Court, he continued the hearing of the case there, but could not complete the hearing before he retired from service. The case was subsequently assigned to Ayorinde, J. On the 18th of October, 1983, he ordered hearing notices to be served on the parties. When the matter came up for mention in court on the 12th of February 1984, the learned Judge noted that hearing notices had been served on all the parties save the second defendant. It ought to be mentioned, too, that those other parties to the suit, although served and had duly entered appearance and had all filed their statements of defence, showed no further interest in the matter. Further, on the 13th of February, 1984, the learned Judge ordered that service of the hearing notice on the second defendant be effected by a single insertion of an advertisement in the “Daily Times of Nigeria.” The plaintiffs maintain that the order was carried out on the 13th of April, 1984. But the 2nd defendant swore that neither he nor his counsel saw the advertisement. On the 21st of March 1985, the trial of the case commenced de novo. Then on the 25th of March, the learned Judge directed the learned counsel for the plaintiffs to write a letter to the counsel for the second defendant informing him that the trial of the case had commenced. The learned counsel for the second defendant, Mr. Shomade, maintains that at the time he got the letter the hearing of evidence had been concluded. On the other hand, the learned counsel for the plaintiffs, Chief Shodipo maintains that the letter dated the 25th day of April, 1985, was signed for and on behalf of the second defendant on the same day. What is clear is that on the 28th of March, 1985, plaintiff’s evidence closed. No oral evidence was called to resolve the issues as to when precisely the letter in question was received by the second defendant or his counsel. The second defendant first appeared in court on the 7th of May, 1985. A junior in Mr. Shomade’s Chambers, Mr. Atolagbe, appeared for him. According to the court’s record, Mr. Atolagbe was recorded as saying:
“We intend to call evidence. We filed our statement of defence.”
Then Mr. Shodipo is recorded as replying:
“If he wants to put his witness in the box I would not object. The defendants were given notice in the press and letters were written to them. Mr. Shomade and Nwanze came to court once.”
When the court ruled that defendant should proceed to give evidence Mr. Atolagbe is again recorded thus,
“I am asking for one hour’s stand down. It is 11.05.”
After the short adjournment, hearing commenced. All that transpired showed that the 2nd defendant was not prepared for hearing on that day, and so at a certain point learned counsel had to ask for an adjournment, and the court adjourned with costs. On resumption, on 16th May, 1985, Mr. Shomade himself appeared. He stated thus:
“I was not served with the hearing notices when this matter was transferred to this court from Mr. Justice Oluwa where it was partly heard from 1979 September to 14th July, 1983. I never saw the advertisement in the Daily Times. Order 5 rule 1, when a person is represented by legal practitioner preliminary service should be made to him. I require time to read the Record of Proceedings before I can continue with the case of the second defendants.”
On the opposition of the learned counsel for the plaintiff, the learned Judge insisted that the second defendant should first conclude his evidence in chief after which he would consider the application for an adjournment. After the cross-examination of the second defendant, Mr. Shomade repeated his application for an adjournment to enable him considers his position in the matter, and the case was adjourned. Thereafter, on the 7th of June, 1985, the second defendant, by a motion on notice prayed the court for an order,
(i) setting aside the proceedings in the suit on the ground that it was commenced and heard in the absence of the second defendant and that no hearing notice was served on him; and
(ii) alternatively, to recall all the witnesses who testified on behalf of the plaintiff for cross-examination.
The motion was supported by a twenty-eight paragraph affidavit on behalf of the 2nd defendant. There was a counter affidavit which denied or described the many averments in the second defendant’s affidavit as untrue. At the hearing of the application, the learned counsel for the applicant drew the attention of the court to a number of conflicts in the affidavits of both parties before the court, and, relying on Falobi v. Falobi (1976) N.M.L.R. 169 at page 178, he submitted that the learned Judge should have heard oral evidence to resolve the conflicts. In a considered ruling handed down on the 21st of November, 1985, the learned Judge described many of the averments in the affidavits of the second defendant as creating credibility gaps here and there. He then proceeded to dismiss the application. The second defendant (hereinafter called the appellant) has therefore appealed to this court. The plaintiffs shall be referred to as the respondents.
The appellant did not in his brief properly formulate the issues for determination in this appeal. This is in error in view of the express provisions of our Rules (see Order 6 rule 3(a) of the Court of Appeal (Amendment) Rules 1984). However, from the appellant’s grounds of appeal, written brief and oral argument in this appeal as well as the brief of argument of the respondents, the issues for determination would appear to be as follows:-
(1) Whether the appellant required the leave of the High Court before appealing; and, if he did, whether such leave was obtained;
(2) Whether the learned Judge was right to have suo motu ordered that the hearing notices in the case be served on the appellant by substituted service, i.e. by advertisement in the ‘Daily Times of Nigeria’ as there was no application to that effect by the respondents;
(3) Whether, having regard to/that advertisement and other provisions of the High Court of Lagos (Civil Procedure) Rules (1972) as well as other circumstances of the case, the appellant should be deemed to have had due notice of the hearing of the suit;
(4) Whether the second appellant, after taking part in the proceedings on the 7th and 16th of May, 1985, could have rightly applied in June, 1985, to have the proceedings set aside; and
(5) Whether the application to set aside the proceedings was filed within time and is in order.
The question as to whether or not the appellant required the leave of the High Court before appealing depends on two issues, namely – (1) whether the order appealed against, that is the order refusing to set aside the judgment, is final or interlocutory and (2) whether, even if interlocutory, it required leave to appeal from it. Until recently it was thought that the test to be applied in this country as to whether a judgment or order was final or interlocutory had been settled for good. This court and the Supreme Court in a number of cases held that the test to be applied was one which looked at the nature of the order made and not at the nature of the proceedings. If the order determined the rights of the parties it was final. Among the numerous decisions in this line are Blay V. Solomon 12 W.A.C.A. 175; Ude & Ors. v. Agu & Ors. (1961) 1 All N.L.R. page 63; F. Afuwape & Ors. v. E. A. Shodipe & Ors. (1957) 2 F.S.C. 62; In Ojora & Ors. v. Odunsi (1964) N.M.L.R. 12, not only was this test re-affirmed but also it was further held that when an application such as the instant is made after the rights of the parties have been decided in the judgment a subsequent decision such as the one appealed from is interlocutory. Applied to this case and following this line of decisions I would have had no difficulty in coming to the conclusion that the decision appealed from is interlocutory. But, I must point out that in all the cases, it has always been recognised that it is not always easy to say whether a particular decision is final or interlocutory. There is also a conflict of authorities particularly in England as to which is the appropriate test-whether to look at the nature of the proceedings or the result. As I have said, in this country we regarded the matter as settled in favour of the test which looks at the result and not the nature of the proceeding. But a careful read of a recent decision of the Supreme Court in the case of W. A. Omonuwa v. Napoleon Oshodin & Anor. (1985) 2 S.C. 1 in which most of the leading decisions on the point were reviewed shows that the matter is not yet as clear cut as we had thought. In the leading Judgment of Karibi-Whyte, J.S.C. at page 31 of the report; he said:
“All the cases cited agree on the proposition that the decision between the parties can only be regarded as final when the determination of the court disposes of the rights of the parties, (and not merely an issue) in the case. Where only an issue is the subject matter of an order or appeal the determination of that court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties, is in my respectful opinion interlocutory.”
Thus this appears to eliminate from the category of final decisions a vast number of interlocutory proceedings which were regarded as final for purposes of an appeal. In D.P.P. v. Chike Obi (No. 2)(1961) All N.L.R. 458 a decision of the Federal Supreme Court on reference was held to be final even though it just decided a point of law referred to it and not the rights of the parties. Also in Adegbenro v. Akintola (1963) A.C. 614 at p.627 it was made clear that a decision not final in the proceedings before the High Court could be final as far as the Federal Supreme Court was concerned. In neither case could the decision qualify as “final” within the principle in Omonuwa’s Case (supra). It appears to limit final decisions to those which determine the rights of the parties to the case. In other words, they now exclude all those decisions which although did not determine finally all the issues in the case are final for purposes of particular issues in the proceedings. Obviously, if this principle is applied to its logical conclusion some decisions formerly held to be final would now appear to be interlocutory. See for an example J.S.P.C. Nwokolo & 10 Ors. v. Joseph Nnaji & 3 Ors. (1977) N.C.A.R. 107. Fortunately on the contention and nature of the decision appealed from in this case, I need not go into this issue now. For, whether I apply the above opinion or that in Ojora v. Odunsi & Ors. (supra) where it was held of an application for an attachment:
“The rights of the parties in this case had been finally determined on 8th June, 1961; therefore the application before the High Court in the present proceedings was an interlocutory one…”
I should come to the conclusion that the decision of the court in this case on the 21st of November, 1985, refusing to set aside the proceedings in the suit which was commenced and heard in the absence of the second appellant was interlocutory. Indeed no judgment had been delivered in the main case. So an appeal therefore should be filed within 14 days, as indeed it was.
The next Question is as to whether, being an interlocutory decision, leave was necessary. This turns on the interpretation at Section 220(1)(b) of the Constitution of the Federation, 1979. This provision confers a right of appeal as of right to a party:
“Where the grounds of appeal involves questions of law alone, decisions in any civil or criminal proceedings”.
Such a decision need not be final. It is now well settled that this provision confers a right of appeal as of right from interlocutory decisions where the proposed grounds of appeal involve questions of law alone. No leave is necessary in such a case. See Omonuwa’s case (supra) at page 17; See also Nafiu Rabiu v. Kano State (1980) 8 -11 S.C. 130 pp. 157, 203 – 204. There is, of course no question that refusal to set aside the proceedings is an appealable decision within the meaning of Section 277 of the Constitution. The grounds of appeal filed by the appellant was exhibited as Exh. C to his motion papers.
The grounds are not properly classified and numbered. Ground 1, is said to be an error in law. What is numbered (2), said to be “particulars”, runs from (i) – (viii). It does appear however that those particulars (i) – (v) are properly particulars to ground 1, whereas the paragraph marked (vi) should be Ground (2). Paragraph (VII) should be ground (3). Paragraph (viii) is clearly a ground of fact which, because of the nature of the appeal, ought to be struck out. It is hereby struck out. I therefore re-number the grounds of appeal, on my own motion, as Grounds (1), (2) and (3) as indicated. There was no dispute before us that these are grounds of law. That being the case, they are grounds of law on which the appellant can appeal as of right under Section 220(1)(b) of the Constitution. I therefore hold that no leave was necessary.
As to whether the learned judge was right to have suo motu decided to order substituted service of the hearing notice on the appellant by advertisement in the Daily Times of Nigeria, it is necessary to consider the provisions of Order 6 rule 6 of the High Court of Lagos State (Civil Procedure) rules, 1972. This rule provides:
“6(1) Where personal service is required by these Rules or otherwise, and it is made to appear to the Court or a Judge in Chambers that prompt personal service cannot be effected, the Court or Judge may make such order for substituted or other service, or for the substitution of notice for service, by advertisement, or otherwise as may seem just.
(2) Every application to the Court or to a Judge in Chambers for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the application is made.”
It is noteworthy that sub-rule (1) says that it is when:
“It is made to appear to the Court or a Judge in Chambers that prompt personal service cannot be effected…”
that a substituted service or for substitution of notice for service or by an advertisement may be made. This implies that it is for the party applying to make it so appear to the Judge or Court by the materials he may put before the Court that prompt personal service cannot be effected. It is only upon consideration of such materials that the court or judge can reach a decision that substituted service or substitution of notice for service by advertisement is necessary and proper. Indeed sub-rule (2) put the prescribed procedure beyond question when it says that such an application:
“shall be supported by an affidavit setting forth the grounds upon which the application is made.”
In my view, it appears to be implicit from the above provisions that a proper application for substituted service or substitution of notice by, say, an advertisement shall –
(1) be made by motion and
(2) be supported by an affidavit. The affidavit must show:
(i) The efforts which have been made to serve the party entitled to the service personally and satisfy the court that prompt personal service cannot be effected.
(ii) It must also state the mode of substituted or other service proposed.
In my view it is not intended by the above rule either that the judge can act on his own motion or assume the facts upon which the exercise of his discretion can only be based as established. The rule contemplates a formal order which must be drawn up. For this, See Supreme Court Practice (1982) paragraph 65/4/7. As the order for substituted or similar service is a judicial decision which can only be made by a judge after considering all the facts and circumstances of the case placed before him by the applicant, it is my view that such an order made by a Judge suo motu when there is no application or any affidavit before him is one made without jurisdiction. It is therefore not merely irregular but absolutely null and void.
Furthermore, it ought to be borne in mind in all cases that the purpose of such a substituted service, like all other services is to bring the proceedings to the notice of the defendant. As Lord Davey said in the Privy Council case of In re John Mclaughin (1905) A.C. 343 at page 347:
“In ordinary cases in considering upon whom substituted service shall be made, the preliminary consideration is as to how the matter can be best brought to the personal attention of the person in question himself.”
In other words, after a court has decided that substituted or similar service is necessary, it ought further to consider whether the mode of service proposed will satisfy the primary objective of bringing the proceedings to the notice of the person to be served. Under our Rules of Court, service of hearing notice on a party’s counsel is good service. It has not been explained to our satisfaction why the hearing notice in question in this case was not served on the appellant’s counselor on the appellant himself upon whom the writ was served personally before it was decided to order service by advertisement in the newspaper. Furthermore, the circumstances of this case make it unlikely that the appellant would be expected to look for service of the hearing notice by advertisement in a newspaper. The case had been pending for about 10 years during which it had moved from one Division of the Court to another and, more recently, from one Judge to another. The appellant was certainly entitled to notice of the change from one Judge to another. He and his counsel have asserted in no uncertain terms that they did not see the advertisement in the newspaper and there is nothing to suggest the contrary. In the above circumstances I cannot rightly presume that they saw the notice. Even the provision of the Lagos State High Court Rules which obliges a party and his counsel to check up the weekly cause list cannot avail the respondent in a situation like this where a case has been shifted from one Judge to another. I must therefore hold that this is not a situation where I can presume any service against the appellant, and that it was not shown that the advertisement of the hearing notice came to his notice. In Madam Kinkuiya Odija v. Ezedinon Okwudimma and 2 Ors. (1969) N.M.L.R. 121, the Supreme Court held that failure to serve notice on the appellant when the plaintiff had not obtained an order dispensing of service of such a notice renders the proceedings a nullity, and not merely an irregularity. See also Layanju v. Araoye 4 F.S.C. 154; also Scott Emuakpor v. J. I. Ukarbe (1975) 12 S.C. 41. See also Craig v. Kanseen (1943) 1 All E.R. 108, p. 113. On the result of the situation that has risen in this case, I should refer also to the opinion of Nnamani, J.S.C. in Skenconsult (Nig.) Ltd. & Anor. v. Godwin Sekondy Way (1981) 1 S. C. 6 at pages 25 – 26:
“I am of the contrary view and I think that all the breaches in the instant case of the regulations relating to service and appearance are fundamental defects and go to the question of the competence and the jurisdiction of the court which pronounced the orders sought to be set aside. I may add that even if they were irregularities mere acquiescence of the parties (as claimed by learned counsel for the respondent) cannot give the court competence or jurisdiction.) See Westminister Bank Limited v. Edwards (1942) A.C. 529 at 536; (1942) 1 All E.R. 470 at 474 where Lord Wright observed:
“Now it is clear that a court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative, even though the parties have consented to the irregularity because as Willes, J. said in London Corp. v. Cox (1867) L.R. 2 H.L. 239 in the course of giving the answers of the judges to this House, “mere acquiescence does not give jurisdiction.
(Italics are mine).
A Court can only be competent if among other things all the conditions precedent for its having jurisdiction are fulfilled. In Madukolu and Others v. Nkedilim (1962) I All N.L.R. 587 at 594 Bairamian F. J. (as he then was) stated the principles which have been accepted in successive cases in this Court.”
The learned Judge appears to have realised the seriousness and unfairness of the situation when he directed that a letter dated 25th of March, 1985, four days after the learned Judge started hearing evidence should be sent to the respondent informing him of the hearing.
I must also reject the contention of the learned counsel for the respondent that because the appellant joined in the proceedings on the 7th and 16th of May, 1985 several days after the respondent had closed their case, he had acquiesced to the situation and could not therefore subsequently apply for the proceedings to be set aside. This is a mis-conception of the difference between proceedings which are merely irregular and those that are null and void. Irregular proceedings could be acquiesced or regularised; but where the proceedings are a nullity there is nothing to be acquiesced in. In the words of Lord Denning in Macfoy v. U.A.C. Ltd. (1962) A.C. 152 at page 164:
“The distinction between the two (i.e. between void and voidable proceedings) has been repeatedly drawn. If an act is void then it is a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so and other proceedings which are based on it as bad and incorrigibly bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
(Parenthesis mine)
So void decisions are generally destitute of any legal effect because they confer no legal right on any body. They cannot therefore be ratified by subsequent conduct. It follows that the respondent cannot take umbragu under the fact that the appellant took part in the proceedings of the 7th and 16th of May, 1985, in so far as the proceedings were null and void and not merely irregular. For, it is the rule that nullity cannot be cured by any conduct on the part of the person over whom the act was done. See Essex Incorporated Congregational Church Union v. Essex County Council (1963) A.C. 808. It also follows from what I have said above that as such proceedings were a nullity, they could be set aside without much ado. If a court is asked to set it aside it may do so under its inherent jurisdiction and powers, and not under any rule of court as such. Once it finds that it is a nullity, it can set it aside ex debito justiciae, although courts have sometimes refused to entertain appeals from void decisions on the grounds that there is nothing to appeal against; Rex v. Jones (Gwyn) (1969) 2 K.B. 33.
Before I conclude, I should observe that the learned Judge obviously acted out of exasperation for the constant adjournments of the proceedings. Having regard to the constant out-cry against delays in the trial of cases and the consequent congestion of our courts, this is understandable. But, in showing his disapproval of the situation, he should have done well to remember that certain features of our adversary system of administration of justice carry with them some implications of inevitable delay. The audi alteram partem rule (which, together with the rule nemo judex in sua causa form the twin pillars upon which fair hearing is based), carries with it the need to give to all the parties due notice of hearing and the opportunity to be heard and to cross-examine every witness called by one’s adversaries. Generally, a breach of the rule, save in a few statutory exceptions, will invalidate the proceedings because it is breach of not only the right to fair hearing entrenched in our Constitution but also a breach of the rule of natural justice. This is why I am surprised that the learned judge also dismissed the appellant’s application that all the witnesses who had testified before he came into the hearing be recalled for cross-examination. The Judge should have granted the application as the cross-examination of those witnesses was necessary, assuming there was a valid trial, if the Judge had to do justice between the parties. See Tabaa v. Lababedi & Anor. (1974) 1 A.N.L.R. Pt.1) 400. Indeed, I cannot see on what rule or to what purpose the learned Judge had to force the appellant into the witness box to give evidence in his defence when he had not the opportunity of hearing and cross-examining the respondents and their witnesses. In my opinion, in the circumstances that arose in this case the learned Judge had the duty to balance the need for speedy trial with the dictates of fair hearing guaranteed by our Constitution and inherent in our system of administration of justice. It was a grave error to have sacrificed those features on the altar of speed.
For all I have said, the appeal succeeds and is allowed. The proceedings are set aside, and the case remitted for trial de novo before another judge. The appellants will have the costs of this appeal which I assess at N300.00.
Other Citations: (1986) LCN/0031(CA)
