CORAM

---

joseph olubunmi kayode oyewole – Justice of the Court of Appeal

adebukunola adeoti ibironke banjoko- Justice of the Court of Appeal

okon efreti abang- Justice of the Court of Appeal

---

PARTIES

---

1. ALHAJI SANI KABIRU YAKASSAI

2. SKY MEMORIAL COMPLEX LIMITED

3. JANE AKPOMEJEME

APPELLANTS 

---

SIMEON UGBOR

RESPONDENTS 

---

AREA(S) OF LAW

---

CIVIL PROCEDURE, SERVICE OF PROCESS, FAIR HEARING, PRACTICE AND PROCEDURE, PLEADINGS

 

---

SUMMARY OF FACTS

The Appellants were the owners/landlords of premises occupied by the Respondent. Following a dispute over rent, the Respondent alleged that his premises were illegally locked up, leading to loss of revenue and damage to property. The Respondent filed a suit seeking various declaratory reliefs and damages. The trial court found in favor of the Respondent. The Appellants appealed, primarily challenging the service of process and alleging denial of a fair hearing.

 

---

HELD

---

1. The writ of summons showed the 1st Appellant's address was within the Federal Capital Territory, making service valid without need for endorsement for service outside jurisdiction.

2. The 2nd Appellant’s status as an incorporated company was admitted through uncontroverted pleadings.

3. The trial court’s refusal to reopen the case after final addresses were filed was a proper exercise of discretion.

4. No denial of fair hearing occurred as the Appellants had full opportunity to present their case.

5. The appeal against the interlocutory ruling refusing to reopen the case was time-barred.

 

---

ISSUES

---

1. Whether the trial in the High Court is a nullity due to lack of personal service of the writ of summons on the 1st Appellant.

2. Whether the trial court’s refusal to allow the Appellants to reopen their case to call a fresh witness amounted to denial of fair hearing.

 

---

RATIONES DECIDENDI

---

SERVICE AS FOUNDATION OF JURISDICTION – IMPORTANCE OF PROPER SERVICE:

---

“Service is fundamental to the exercise of jurisdiction as failure to serve a process deprives the Court of the necessary competence to exercise jurisdiction in the action”. – Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

UNCONTROVERTED AVERMENTS – EFFECT OF FAILURE TO DENY PLEADINGS:

---

“Where a party fails to controvert the averment of his adversary on a material point in the pleadings, such uncontroverted averment is deemed admitted.” – Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

CONSISTENCY IN CASE PRESENTATION – REQUIREMENT FOR CONSISTENT CASE:

---

“Parties must be consistent with the case they present in court. A party cannot willy-nilly canvass different cases at trial and on appeal.” –Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

FAIR HEARING – FUNDAMENTAL NATURE OF FAIR HEARING:

---

“Fair hearing is fundamental to the adjudicatory process. The absence of fair hearing or the failure of the Judex to observe the tenets of fair hearing renders the entire proceedings a nullity.” – Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

APPELLATE INTERVENTION – INTERFERENCE WITH DISCRETION:

---

“An appellate court will not interfere with the exercise of discretion by a lower court simply because such appellate court would have decided otherwise.” – Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

ARGUMENTS OF COUNSEL – LIMITS OF COUNSEL’S ARGUMENTS:

---

“While counsel, as master of the law, may canvass legal arguments, it is, however, not permissible for evidence not hitherto existing in the records to be introduced into the proceedings through the instrumentality of the legal arguments.” – Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

PROPER DENIAL – REQUIREMENTS FOR VALID DENIAL:

---

“A specific deposition against an opponent, not denied either expressly or by necessary implication, is deemed to be admitted by that opponent and will not be allowed on appeal to canvass the contrary.” – Per Adebukunola Adeoti Ibironke Banjoko, J.C.A.

 

---

JURISDICTION AND SERVICE – CHALLENGING SERVICE ON APPEAL:

---

“While a challenge to the jurisdiction of the court may well be raised for the first time on appeal, however, where it relates to service of processes, the factual basis for the challenge must exist in the records of the court.” – Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

REOPENING CASE – DISCRETION TO REOPEN PROCEEDINGS:

---

“The decision of the lower court in this instance was an exercise of the court’s discretion, which was made based on the materials available to the said court.” – Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

TIME FOR APPEAL – REQUIREMENT FOR EXTENSION OF TIME:

---

“The failure of the Appellants to seek extension of time is fatal to the competence of this issue.”
– Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

DENIAL IN PLEADINGS – NATURE OF PROPER DENIAL:

---

“A traverse in the pleading of one party, of an allegation of fact asserted by the other… A response by the Defendant to matter(s) alleged by the Plaintiff in the complaint.”
– Per Adebukunola Adeoti Ibironke Banjoko, J.C.A.

 

---

JUDICIAL DISCRETION – EXERCISE OF DISCRETION:

---

“Once it is evident, as in the present case, that the lower Court exercised its discretion judicially and judiciously in accordance with extant legal principles, the appellate Court will not interfere.”
– Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

EVIDENCE ON APPEAL – INTRODUCTION OF NEW EVIDENCE:

---

“The arguments of counsel no matter how brilliant cannot take the place of evidence”. – Per Joseph Olubunmi Kayode Oyewole, J.C.A.

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

CLICK HERE TO READ FULL JUDGEMENT