➥ CASE SUMMARY OF:
Etsako West Local Government V. Isa Oshiobujie Christopher (SC/775/2017, 20th December 2024)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Leave to file appeal;
Diligent prosecution.
➥ CASE FACT/HISTORY
The present appeal is a fall-out of the decision (Order) of the Court of Appeal Benin Judicial Division, delivered on April 6, 2017 in appeal No. CA/B/417/2014. By the decision in question, the court below coram: the Hon. Justice P. M. Ekpe, J.C.A, the Hon. Justices S. C. Oseji, J.C.A. (as he then was), and the Hon. Justice M. N. Oniyangi, J.C.A, dismissed the appellant’s appeal for want of prosecution.
➥ ISSUE(S)
I. The appellant filed the notice of appeal in this suit without first obtaining the requisite leave pursuant to section 233(3) of the constitution of the Federal Republic of Nigeria (1999).
II. Whether or not the Court of Appeal was right in entertaining the respondent’s motion for dismissal of the appeal, in the absence of the appellant and its counsel, when no hearing notice was served on either of them?
III. Whether or not, the court below was right in dismissing the appellant’s appeal before it for want of diligent prosecution, when there was a pending motion by the respondent challenging the competence of the notice of appeal, against which the appellant filed a counter affidavit?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[GROUND ONE IS A GROUND OF LAW AND NO LEAVE OF COURT IS REQUIRED
‘The certified true copy ol the enrolled order of the Court of Appeal dismissing the appeal showed that the order was made on 21st February, 2017(b)even before the purported service. Considering the particulars thereof, I am of the view that ground I of the notice of appeal could aptly qualify as a ground of law. My view is based upon the simple, albeit trite, principle of law, that the Court of Appeal being a superior court of record ought to be bound by its own record.’
‘Hence, having arrived at the conclusion, rightly in my view, that the said ground I of the notice of appeal raises a question of law, the notice of appeal is hereby adjudged to be competent. Accordingly, the respondent’s preliminary objection ought to be, and same is hereby discountenanced and dismissed, for being devoid of merits.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[APPELLANT HAS FAILED TO REBUT THE SERVICE OF PROOF OF SERVICE
‘I have critically, albeit dispassionately, taken into account of the fact that the appellant had in the course of the proceedings before the court below filed a motion on 20/5/2016, thereby seeking leave of the court to amend the notice of appeal and to file additional grounds of appeal, which was duly granted as per prayer I. The second prayer seeking to file appellant’s brief of argument was, however, struck out.
As aptly postulated by the respondent’s learned counsel (page 17 paragraph 1 of the amended brief thereof), looking at the affidavit of service of the processes upon the appellant at page 206of the record of appeal, it’s evident that the appellant had indeed been duly served.
Thus, the appellant has an onerous duty to rebut that proof of service of the process thereupon. The appellant failed to rebut the fact of service of the hearing notice thereupon. See Ahmed v. Ahmed (2014) 231 LRCN 179 @ 251-252; (2013) 15 NWLR (Pt.1577) 274 et al.
It’s a well settled doctrine, that where notice of any proceedings is required, failure to notify a party to the proceedings is tantamount to a fundamental irregularity which entitles the party adversely affected to have the order made in his absence, set aside. The ground being that the service of the process being a condition precedent to the exercise of the jurisdiction of the Court to make such an order has not been fulfilled. See Scott-Emuakpor v. Ukavbe(1975) 12 SC (Reprint) 31 per Bello, JsC (as he then was) @ 8paragraphs AOB; Obimonure v. Erinosho (1966) 1 All NLR 250;(1966) 2 SCNLR 228.’
‘The main objective of effective service to the adverse party of the proceedings of the court, so that he may be aware thereof and put up a defence thereto, if he so desires. Thus, any decision or order made in the absence of proper service, is given without jurisdiction, and liable to be declared void and set aside on appeal. See Scott-Emuakpor v. Ukause (1975) 2 SC 41..
Contrariwise, however, where the party deliberately fails to avail himself of the opportunity with court proceedings (as in the instant case), he is devoid of competence to complain of nonservice, or denial of opportunity to be heard. See Dickson v. Okoi (2003) 16 NWLR (Pt. 846) 397.’]
.
.
↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.
[THE DISMISSAL OF THE APPELLANT’S APPEAL BY THE COURT BELOW HAS OCCASIONED NO MISCARRIAGE OF JUSTICE
‘Having amply considered the far-reaching submissions of the learned counsel contained in their respective briefs of argument is-a-vis the record of appeal, as whole, I am unable to uphold the appellant’s contention that the court below was wrong In dismissing the appeal for want of diligent prosecution.
In my considered view, the fact that the appellant was served with both the motion for dismissal of the appeal and hearing notice vide the counsel thereof, is evident and incontrovertible on the face of the records of appeal. There’s every reasonable and valid cause for me to hold, that no substantial miscarriage of justice has been occasioned in this case consequent upon the dismissal of the appellant’s appeal, for want of diligent prosecution. See Olatunbosunv. The State (2013) 225 LRCN (Pt. 2) 1 @ 18 paragraphs U-Z;(2013) 17 NWLR (Pt. 1382) 167; Rex v. Thompson (1914) 2KB99; R. v. 1 Asiegbu 3 WACA 142; R. v. Osita Chukwugbo Agwu12 WACA 456; Unilorin v. Akinola (2014) 237 LRCN 39 @ 70paragraphs EE-JJ; (2014) 12 NWLR (Pt. 1422) 435.’]
.
.
.
✓ DECISION:
‘The judgment of the Court of Appeal, Benin Judicial Division, delivered on April 6, 2017 in Appeal No. CA/B/417/2014, ought to be and same is hereby affirmed. Appeal dismissed.’
➥ FURTHER DICTA:
⦿ FAILING TO SEEK LEAVE OF COURT TO APPEAL TO THE SUPREME COURT WHERE LEAVE IS REQUIRED FATAL
However, subject to the provision of subsection of section233 of the 1999 Constitution, an appeal shall lie from the decision of the Court of Appeal to the apex court pursuant to leave of either the Court of Appeal or the Supreme Court. It’s trite, that failure to seek and obtain leave of appeal prior to filing an appeal renders such an appeal incompetent and liable to be struck out. Thus, prior leave of either the Court of Appeal or the apex court is required to appeal against any decision of the Court of Appeal involving question of facts alone, or mixed law and facts. In such a circumstance, prior leave of either the Court of Appeal or the Supreme Court could be said to be a condition precedent to the exercise of the jurisdiction of the apex Court under section 233(3)of the 1999 Constitution as amended. — Saulawa JSC.
⦿ THE COURT OF APPEAL IS BOUND BY ITS OWN RECORDS – ITS RECORDS ARE TO BE REGARDED AS THE HIGHEST AUTHORITY FOR IT
The certified true copy ol the enrolled order of the Court of Appeal dismissing the appeal showed that the order was made on 21st February, 2017 even before the purported service. Considering the particulars thereof, I am of the view that ground I of the notice of appeal could aptly qualify as a ground of law. My view is based upon the simple, albeit trite, principle of law, that the Court of Appeal being a superior court of record ought to be bound by its own record. It is trite, that a court of record is duty bound to keep record of its proceedings. The term “Court of record”. Has had its trajectory way back in the 15th century. The whole essence of a court of record is that its records are regarded to be of the highest authority, and truth of the said records cannot ordinarily be questioned. — Saulawa JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Saulawa, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Prof. Ambrose O.O. Ekpe.
⦿ FOR THE RESPONDENT(S)
Richard O. Ashara.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
