Third Eye Communications Ltd. & Ors V. Chief Kolapo O. Ishola (1998)
LawGlobal-Hub Lead Judgment Report
ADAMU, J.C.A.
By a motion on notice filed on 24/6/97. the appellants/applicants prayed to this court for the following order:-
….. an order for stay of proceedings of the substantive case in these proceedings now pending before the High Court No.8 Ibadan. Oyo State of Nigeria, and the pending motion, pending the decision on or the determination of the appeal lodged of the Court of Appeal, Ibadan. with the leave of the High Court against the decision or the lower court made on 31st May. 1996 in respect of which notice of appeal was filed on 11th June. 1996.
And for such further or other order or orders as this honourable court may deem fit to make in the circumstances.”
At the hearing of the application on 22/9/98 learned counsel for the appellants/applicants moved the motion which was supported by two affidavits upon which he relied. He also informed us of the refusal of the lower court to grant a similar application for stay of proceedings. The applicants’ main complaint is that they were jointly served with the writ or summons rather than individually and separately as required by the rules of the court. The learned counsel referred us to the provision of Orders 5 r. 2 and 12 rr 2 and 5 or the High Court (Civil Procedure) Rules of Oyo State, 1988 which prescribes the mode of service of a writ of summons. He also referred us to Exhibit “An attached to their main affidavit in support of the motion which is a copy of the writ in question. The case of Odutola v. Kayode (1994) 2 NWLR (Pt. 314) 1 at p. 15 was also cited by the learned counsel as a decision of the Supreme Court where it was held that an individual serving in a company, when sued as an individual must be served personally at his address rather than that of the company he serves. It was also contended by the learned counsel for the applicants that the only ground upon which the respondent relied and which was upheld by the lower court in the earlier motion for stay to the effect that applicants’ appearance and filing of a counter affidavit at the said lower court amounted to a waiver of their right to personal service was misconceived as their appearance thereat was entered conditionally and in protest and was therefore not a waiver. Furthermore, it was argued on behalf of the applicants that since waiver is an issue or matter of fact it should have been deposed to in the respondent’s counter-affidavit and the respondent’s failure to raise it in a counter affidavit was consequently fatal to his ground of objection on that basis at the lower court – see Carribe Fidelity Corporation v. N.N.P.C. (1992) 7 NWLR (Pt. 252) 161 at pp. 172 and 185 cited in support of the contention.
In another arm of the applicants’ submissions it was argued by their learned counsel that by their 3 (three) grounds of appeal as shown in the notice of appeal (Exhibit “B”) in which they complained against the jurisdiction of the lower court, the said grounds are therefore substantial and arguable in an area where the law is recondite – See Carribean Trading & Fidelity Corporation v. N.N.P.C. (1991) 6 NWLR (Pt. 197) 352 at p. 355.and Ojukwu v. Onyeador (1991) 7NWLR (Pt. 203) 286 at p. 322 cited in support of the argument. It was also submitted that the special and exceptional circumstances which necessitates the grant of stay in the case is that since the applicants are complaining against the jurisdiction of the lower court and they have a chance of success in their appeal, if the proceedings before the lower court are not stayed their success in the appeal will be rendered nugatory and the proceedings of the lower court will be rendered a nullity no matter how well conducted they could be and it will thus become a futile exercise. See Atanda v. Ajani (1989) 3 NWLR (pt.111) 511 at p.560 referred to by the learned counsel for the applicants in support of the argument.
In reply to the above submissions, the learned counsel for the respondent Mr. K.A. Sobaloju indicated his opposition to the application which he described as an attempt or tactic to delay the proceedings at the lower court. The learned counsel restated the principles to be considered and observed by the court in dealing with an application for stay of proceedings and submitted that in the instant application the applicants have failed to prove any exceptional or special circumstances in their affidavit evidence to warrant a grant of stay of proceedings by this court. It was also submitted by the learned counsel that the issues raised in the grounds of appeal by the applicants are not issues of substantial law as alleged by their counsel – Set: Kotoye v. Sarah (1993) 5 NWLR (Pt. 296) 710 at p. 723 cited in support of the submissions by the respondent’s counsel. On the provision of Order 5 rule 2 of the High Court (Civil Procedure) Rules of Oyo State (supra) upon which the applicants’ counsel heavily relied, the respondent’s counsel submitted that the provision which only requires the address or place of abode of the defendant(s) to be stated in the writ “so far as they can be ascertained” was complied with and satisfied in the present case. Order 5 r. 12 or the Rules was also said to have been satisfied in that the writ in the instant case contained the name and address of the defendants/applicants’ legal practitioner. Reference was also made by the learned counsel to the deposition made in their counter-affidavit before the lower court (Exhibit H) wherein they acknowledged personal service (by implication) when the deponent thereto stated that he had the authority of other defendants to depose to the affidavit. It was pointed out that similar implication on acknowledgment of service was made by the Supreme Court in Panache Comm. Ltd v. Aikhomu (1994) 2 NWLR (Pt.327) 420 cited by the respondent’s counsel in support of his submission. On the issue of jurisdiction raised in the grounds of appeal, the respondent’s counsel contended that the issue does not automatically render the said ground as substantial or arguable for the purpose of granting a stay of proceedings – see Ojukwu v. Onyeador (supra) cited in support of the point. Finally we were urged by the respondent’s counsel to refuse the application and dismiss it. In considering the above submissions of learned counsel to both parties in the present application, it is pertinent to observe that the main issue involved or raised by the applicants in their motion to set aside the writ of summons at the lower court as on the validity or otherwise of the service or the said writ on the applicants. This raised or led to the question of whether or not the condition precedent for the exercise of the said lower court’s jurisdiction on the said applicants had been fulfilled or satisfied. On these issue and question, the law is well settled that failure to serve process (including a writ of summons as in the present case) where service is required under the High Court (Civil Procedure) Rules is a fundamental omission which entitles the party not served and against whom an order is made or likely to be made in his absence to have the order set aside on the grounds that a condition precedent for the exercise of the court’s jurisdiction in making the order has not been fulfilled set: Skenconsult (Nig.) Ltd. V. Ukey (1981) 1 SC 6 at p.26; Scott – Emuakpor v. Ukavbe (1975) 12 SC 41 at p.46; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Wimpey Ltd & Anor v. Balogun (1986) 3 NWLR (Pt.28) 342 at pp.333 – 334; and Leedo Presidential Motel v. B.O.N. Ltd (1998) 10 NWLR (Pt.570) 353 at pp.380 – 381. It is to be noted however that the above principle of law relating to service of court’s process on the applicants notwithstanding, the actual question posed at the trial or lower court was whether or not they were in fact served with the writ or summons. This in my view is a question of fact rather than law. Consequently the grounds of appeal filed in support of the present application (Exhibit ‘B’) which attack the jurisdiction of the trial court over the applicants based on non-service of the writ of summons on them was only a diversion from the real issue involved in the case before the said trial court which was purely factual. Furthermore, the technical interpretation of Orders 5 rule 2 and 12 rr 2 and 5 was the personal view of the learned counsel for the applicants made in aid of his diversion or delaying exercise. Whatever the real motive or object is, I do not consider it worthwhile to delve into its merit at this stage because to do so will be in effect determining or putting to an end the substance of the applicants’ interlocutory appeal before this court and will also affect the pending proceedings of the lower court which has been appealed against.
I will recall here that the learned counsel for the applicants has himself conceded in his submission that the issue of waiver which is raised in one of the grounds is a factual one. I will therefore readily agree with the respondent’s counsel’s submission on the grounds that the other issue of jurisdiction also raised in the said grounds will not automatically render the grounds us substantial or recondite especially in view of the circumstances and the stage of the proceedings at the trial court which did not even commence, In my view, under the circumstances of the case at the trial court, the service of the writ of summons on the applicants which is not denied by them but is only attacked on technical ground may even if believed, be treated as a simple irregularity as opposed to a fundamental one. See Order 2 rule 1 (I) or the said rules (supra) which provides as follows:
“Where in beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings or any document, judgment or order therein.”Consequently, the issue of jurisdiction raised in the present case is not substantial or arguable one in an area where the law is recondite, It is rather an issue of technicality with a view to stalling the proceedings at the lower court. In any case even if the applicants succeed in their appeal before this court and the writ of summons in question is set aside or struck out rather than dismissed as it was not on merit, the respondent can still, and has the liberty, to take out another writ and commence a fresh suit against them at the lower court. This will result in prolonging the litigation. It will therefore be in the best interest of justice and will save the time of all the parties and the court if the allegedly invalid writ is allowed to be regularised in terms with the provision of the above order and the proceedings at the lower court he commenced and concluded without much delay. It is trite that an appeal court should hesitate in deciding an interlocutory application (at that level) from making any pronouncement on anything that will put to an end, preempt or prejudge the substantive or main case or issues related thereto that are still pending to be decided either by the appeal court itself or by the lower court. See Obeya Memorial Hospital v. A.G. Federation (1987) 3 NWLR (Pt.60) 325; Ogbonnaya & others v. Adapalm (Nig) Ltd. (1993) 5 NWLR (Pt.292) 147; Falomo v. Banigbe (1998) 7 NWLR (Pt.559) 679 at 697; and Jadesimi v. Akele (1998) 11 NWLR (Pt.572) 133 at p.138; Kigo v. Holman Bros (Nig.) Ltd (1980) 5 – 7 SC 60 at p.66. In the present application, the applicants are asking or urging us to decide or determine the issues relating to service of the writ of summons on them and the trial court’s competence or jurisdiction on or over them. In my humble view these are the same issues raised in the interlocutory appeal before this court and are therefore sub-judice – see the grounds and notice of appeal attached to the application (Exhibit ‘B’). In’ other words, there is no way this court can properly determine this application without considering or determining the issues raised in the pending interlocutory appeal. Consequently, in the circumstances of the present application I will prefer to abide by the directive of the superior courts (including the Supreme Court) in the above cited cases and keep my mum on the issues raised and argued by the learned counsel in this application. It has been decided recently by this court that an application for stay of proceedings as in the present case is more appropriate in or at the trial court than at the appellate court. The object being to keep things in status quo pending the determination of the appeal by the appellate court – See Owo v. Adetiloye (199R) 10 NWLR (Pt. 570) 4RR at p. 498 and Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156. The situation in the present case is very similar to Owo’s case (supra) where this court (per Akpabio, JCA.) advised (at p. 497 of the report) that the applicant “could have waited till the end of the appeal and if lost he can then appeal to the Supreme Court where he could raise his point of jurisdiction afresh”. After all, the issue of jurisdiction being a fundamental one can he raised at any stage or level of the proceedings even at the Supreme Court. Consequently, I will give a similar advice to the applicants in the present application. Since the applicants appeared in the case before the lower court they can waive, on terms, the alleged irregularity in the writ and allow any possible amendment so that the proceedings could commence and the case will he decided on merit.
Finally, in view of my above considerations of the applicants’ application for stay of proceedings, I am of the firm view that the said application is premature and lacking in merit. It should be refused and dismissed. I accordingly hereby dismiss it with N1,000.00 costs in favour of the respondent.
Other Citations: (1998)LCN/0361(CA)
