CORAM

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PARTIES

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1. CHIEF LAMIDI KOSOKO2. CHIEF KAFARU AROWOLO(For themselves and as representing the OLAROKUN family) APPELLANTS

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ARIKE YEKINI TIAMIYU(Representing the YEKINI TIAMIYU family) RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The matter is over a parcel of land lying and being at Owode Street, off Progress College Road, New Oko-Oba, Agege and more particularly described and delineated in Plan no. AP/2894 dated 5/1/1981 and was commenced by Originating summons, which was later converted to Writs of Summons. The Respondent claimed against the Appellants inter alia: an Order for damages for trespass over the parcel of land in dispute. The Appellants by a Motion on Notice challenged the competence of a committal proceeding which the Respondents had sought to initiate against them on the ground that they were not served neither with Form 48 nor with Forms 49. The lower Court dismissed the Motion. The Appellants by a Notice of Appeal, challenged the decision of the lower Court and also filed and obtained an order of this Court for this appeal to be heard on the Appellants brief alone, as the Respondent having been served with the hearing notice were not in court, neither was any reasons for their absence provided. The Court therefore deemed their absence as not interested in the appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether the learned trial judge was right when he adjourned the suit for further proceedings and/or hearing of pending application after the Appeal against its earlier decision has been entered at the Court of Appeal as APPEAL NO: CA/L/881/2011.

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RATIONES DECIDENDI

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BRIEF OF ARGUMENT – WHETHER A RESPONDENT’S FAILURE TO FILE HIS BRIEF OF ARGUMENT TRANSLATES TO AN AUTOMATIC SUCCESS FOR THE APPELLANT

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“The fact that there is no respondents brief does not automatically make it an admitted appeal it would still be determined on its merit, in Okonkwo v FRN & Anor (2011) LPELR – 4723 (CA), this Court held on the question of whether failure of the respondent to file brief of argument will make the appeal of the appellant to succeed thus;
“Because the appeal was heard on the Appellant’s brief alone and since the Respondents did not file brief of argument to respond to the issue and points canvassed in the Appellant’s brief, only the submissions by the Appellant are available for consideration in the determination of the appeal. In that regard, the Appellant’s appeal is uncontested in the absence of a brief of argument from the Respondents to the appeal that in law are deemed to have conceded to the appeal.”
See: Salau V Para-Koyi (2001) 13 NWLR (731) 602, Ugboaja V Sowemimo (2008) 10 MJSC, 105; Shona-Jason V Omega Air (2006) 1 NWLR (960) 1 at 27. However, the law in its wisdom is that the fact that a Respondent had opted not to contest an appeal by failure, neglect or deliberate decision not to file a Respondents’ brief does not translate to an automatic success of the appeal for the Appellant. Even in such a situation, the law requires the Court to still consider and determine if the appeal is sustainable in law since the appeal is to succeed only on the strength and potency of the issues canvassed in accordance with established principles of law and not merely on the ground of the absence of Respondent’s brief. The Supreme Court in the case of Echere V Ezerike (2000) ALL FWLR (323) 1597 at 1608, also reported in (2006) 12 NWLR (994) 386 had succinctly stated the position where a Respondent failed to file a brief of argument in an appeal. The Apex Court had said:
“A respondent who fails to file a respondent’s brief is deemed not to contest the appeal of the appellant and have therefore conceded the issues raised and argued in the appellant’s brief of argument. Yet the appeal must succeed or fail on the strength of the appellant’s case. It is not automatic that once a respondent fails to file his brief, the appellant automatically wins or succeeds in the appeal. See also: Akas V Manager (2001) 8 NWLR (715) 436 at 442; Ebe V Ebe (2004) 3 NWLR (860) 215; FBN PLC v Akinyosoye (2005) 5 NWLR (918) 340; John Holt Ventures V Oputa (1996) 9 NWLR (470) 101.” per GARBA, J.C.A (PP. 25-27, PARAS. F-B). See also Oguoma & Ors V COP Imo State & Ors (2018) LPELR 46252 (CA); “-

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BRIEF OF ARGUMENT – DUTY OF COURT TO CONSIDER AN APPELLANTS’ BRIEF ON ITS MERIT EVEN THOUGH IT IS UNCHALLENGED

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“But by law, Appellants’ brief, though unchallenged, still has to be considered, fully, on its merits, in the light of the evidence and the law relating to the case. See the case of Onyenawuli v Onyenawuli & Anor (2017) LPELR-42662 (CA): “Failure of a party (respondent) to respond to an issue or even to the entire appeal, by filing a Respondent’s brief, to contest the appeal, does not make the issue or appeal of the Appellant, automatically, won, or a fait accompli, and unopposed. This is because; the Appellate Court still has a duty to consider the issue raised by the Appellant on the merits, in the light of the evidence adduced and the law.” See also Echere Vs Ezirike (2006) LPELR – 1000 SC, Umeh v Nwokedi (2016) LPELR – 41470 CA; Cameroon Airlines v Otutuizu (2011) LPELR – 827 SC.” per MBABA, J.C.A ( PP. 23-24, PARA. F) –

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COMMITTAL PROCEEDING – EFFECT OF FAILURE TO FOLLOW THE PROCEDURE FOR COMMITTAL PROCEEDINGS

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“This Court in Chukwu & Ors V Chukwu & Ors (2016) LPELR 40553 (CA) on Requirement of personal service of processes in a committal proceeding and effect of failure to comply with the requirement held thus;
“To make matters worse, the Respondents in this case were not served with the alleged Forms, as required by law, which insists on personal service of the contempt proceedings. See FCDA v. Koripamo -Agary (supra) “The notice of motion and affidavit and grounds for committal for contempt committed ex-facie Curiae must be served personally on the person sought to be committed, provided that the Court may dispense with personal service where the justice of the case demands it…” In that case of Anozia Onowu v. Ogboko (supra) it was further held: “Appellant being a lawyer of many years standing should have known that the order for substituted service of the “writ of summons and other processes on the case… did not extend to and could not have covered contempt proceedings, a completely new process of quasi criminal nature, which alleged disobedience to Court order and threatened the Respondents with imprisonment. They needed to be personally served with the alleged contempt and afforded the opportunity to defend themselves.”
per MBABA, J.C.A ( PP. 109-110, PARAS. C-B). Again in FCDA & Anor V Kori Pamo – Agary (2010) LPELR – 4148 (CA) this Court held that-
“It is trite law that contempt of Court is an offence sui generis. An application for committal for any disobedience of an order of Court is a very serious matter as it involves in most cases an exceptional interference with the liberty of a subject and therefore when any antecedent process has to be put in motion, every prescribed step and rule however technical should be carefully taken, observed and insisted upon. Any irregularity in the procedure for committal is a fundamental vice which vitiates the entire application. Per Edozie J.C.A in Atser v. Gachi (1997) 6 NWLR (pt. 510) 609 at 624; Gordon v. Gordon (1946) 1 All E.R. 247 at 250; Boyo v. The State (1970) 1 All NLR 318 at 319-320; Okuosa v. Okwuosa (1973) 3 ECSLR (pt. 1) 75. “Since a proceeding to commit a person for contempt is a criminal or quasi-criminal proceeding, every procedural step – the legal modus proseqiandi must, ‘ex necessitate’, to be followed, strictly and be strictly complied with.” That is the exotic picture painted by Nsofor, J.C.A in Bonnie v. Gold (1996) 8 NWLR (pt. 465) 230 at 238 and that description is what is, in effect the law. By Order 41 Rule 2 (2) of the High Court Rules 1987 applicable in Kwara State the notice of motion and affidavit and grounds for committal for contempt committed ex faciae curiae must be served personally on the person sought to be committed, provided that the Court may dispense with personal service where the justice of the case demands it, which is not the case where there was no application for substituted service. Military Governor of Kwara State v. Afolabi (1991) 6 NWLR (pt.196) 212 at 227. Service of the relevant process on the clerks of the alleged contemnors would not constitute due process under the Rules of Court and so the condition precedent to the initiation of the proceedings and exercise of jurisdiction would not have been met and the result is fatal to the proceedings which are thereby rendered null and void. Military Governor of Kwara State v. Afolabi (1991) 6 NWLR (pt.196) 212 at 227; Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult v. Ukey (1981) 1 SC 6; Atser v. Gachi (1997) 6 NWLR (pt. 510) 609”. –

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COMPETENCE OF COURT – REQUIREMENT FOR A COURT TO BE COMPETENT

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“A Court can only be competent if among other things all the conditions precedent to its jurisdiction are fulfilled. The service of process on the defendant so as to enable him appear to defend the relief being sought against him and the appearance of the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 at 26. For emphasis, failure to serve process where service is required is a failure which goes to the root of jurisdiction of the Court. Any proceedings in such a case is a nullity and a party against whom any order is made in his absence to have the order set aside on the ground that a condition precedent to the order has not been fulfilled. Atser v. Gachi (1997) 6 NWLR (pt. 510) 609; Odita v. Okwudinma (1969) 1 All NLR 228; Union Beverages Ltd. v. Adamite (1990) 7 NWLR (pt. 162) 348; Scott Emuakpor v. Ukarba (1975) 12 SC 41”.

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PROOF OF CONTEMPT – ON WHO LIES THE BURDEN OF PROVING CONTEMPT

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“The mere fact that a Court is dealing summarily with contempt does not imply that the principles of fair hearing are to be compromised. Atser v. Gachi (1997) 6 NWLR (pt.510) 609 at 629 – 630; Boyo v. Attorney General Mid-Western State (1971) 1 All NLR 342 …… A person restrained by a Court from doing any particular act or thing must be duly and properly informed or served with the Court order restraining him before he could be made criminally liable for a breach of such order. Contempt being a criminal charge, the burden of proving it is on the applicant and he must prove all the ingredients in the allegation beyond reasonable doubt. It follows therefore that when the respondent was restrained in his absence by the injunctive order of the High Court, the draw up order duly signed and sealed by the appropriate official of the Court should be served on the respondent who was expected to be authorised by the order. Such service must be in the form duly authorized by the Court and anything short of the strict compliance with the procedure would vitiate any such application for committal. Bonnie v. Gold (1996) 8 NWLR (pt.465) 230 at 237; Okoya v. Santilli (1991) 7 NWLR (pt. 206) 753; Agbachom v. State (1970) 1 All NLR 69; Awobokun v. Adeyemi (1970) NMLR 289; Onagoruwa v. Adeniji (1993) 5 NWLR (pt. 193) 319.” per PETER-ODILI, J.C.A ( PP. 21-27, PARA. C)”. –

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COMMITTAL PROCEEDING –WHEN IS AN APPEAL DEEMED TO HAVE BEEN BROUGHT IN A COMMITTAL PROCEEDING?

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“In Barigha v PDP & Ors (2012) LPELR -19712 (SC), the apex Court held;
“An appeal is filed or brought as soon as the notice of appeal is filed at the Court below/trial Court as the case may be. See: Shodeinde v. Registered Trustees of Ahmadiyya Movement (2001) FWLR (Pt.58) 1065. This means that an appeal is deemed to have been brought when the notice of appeal has been filed at the registry of the Court below or leave to appeal has been granted and before this Court has become seised of the whole proceedings. At this stage, both this Court and the Court below have concurrent jurisdiction to deal with interlocutory applications. However, the Rules of this Court require that such application should be made at the Court below in the first place for adjudication and ruling. An appeal is said to be entered in this Court, on the other hand, when the Record of Appeal has been transmitted to this Court and entered on the cause list. It is at this point in time when the Court below will cease to have jurisdiction to hear any application. After an appeal has been entered, all other applications can only be made to this Court though applications may be filed in the Court below for proper transmission to this Court. This is because once this Court is seised of the appeal, it has the sole jurisdiction to deal with the matter interlocutory or otherwise. See generally: Coker v. Adeyemo (1965) All NLR 125 at pp 128 – 129; Erisi v. Idika (1987) 4 NWLR (Pt.66) 503; Lazard Brothens& Co. v. Midland Bank Ltd. (1933) AC 289.” Per MUHAMMAD, J.S.C (Pp. 28-29, Paras. B-D).
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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Court of Appeal Rules, 2011|High Court Rules of Kwara State,1987|

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