CORAM
PARTIES
MR. ALBANUS ALELE
MR. CHARLES AMUTADI
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents instituted an action before the Rivers State High Court against the Appellant vide their Statement of Claim wherein they sought for a declaration that the committee headed by the 1st Defendant was constituted in bad faith and that they are usurpers of the functions of the Respondent as contact men for Mgbede 16 Location; perpetual injunction restraining the 1st Defendants from further interfering with the functions of the Claimants as contact-men for Mgbede 16 Location; N5,000,000.00 (Five Million Naira) only as general damages amongst other reliefs. At the end of the trial, the lower Court held in favor of the Respondents granting most of their reliefs. Dissatisfied with the above decision, the Appellant filed an appeal against same by a Notice of Appeal containing five Grounds of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the command in the Writ of Summons misled the Appellant or caused him miscarriage of justice? Whether the constitution of the Appellant into a fourteen man committee was proper considering the practice of the families and whether the committee did not usurp the functions of the Respondents as the contact men/representatives of the families? Whether the judgment of the learned trial Judge was perverse considering the evidence before the Court?
RATIONES DECIDENDI
NOTICE OF APPEAL –WHETHER AN OBJECTION TO THE HEARING OF AN APPEAL SHALL LIE ON THE GROUND THAT THE NOTICE OF APPEAL WAS NOT SERVED ON A RESPONDENT PERSONALLY
“Order 2 Rule 1(a) of the Court of Appeal Rules, 2016 is quite instructive on what is necessary as regards service of Notice of Appeal. It reads thus:
“Every Notice of Appeal shall be subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; PROVIDED THAT IF THE COURT IS SATISFIED THAT THE
NOTICE OF APPEAL HAS IN FACT BEEN COMMUNICATED TO THE RESPONDENT, NO OBJECTION TO THE HEARING OF THE APPEAL SHALL LIE ON THE GROUND THAT THE NOTICE OF APPEAL WAS NOT SERVED PERSONALLY.”
What the Respondent/Objector has to show to sustain his objection is that the Notice of Appeal was not communicated to him at all. He has to show that the Record of Appeal served on him did not contain the Notice of Appeal.
The Respondent has not shown that the Record of Appeal was not served on him or that the Record of Appeal served on him does not contain the Notice of Appeal. If it does, then in my respectful view, the Notice of Appeal has been communicated to him.
On 5/8/2019, the Record of Appeal in this Appeal was deemed properly complied, transmitted and served on the Respondents by this Court. This Order of Court has neither been challenged nor set aside.
RECORD OF APPEAL –CONTENT OF A RECORD OF APPEAL
“A Record of Appeal must contain every document relevant to the Appeal. See Olorunyomi & Anor vs. Akhagbe (supra)”. –
IRREGULARITY – HOW SHOULD A COURT TREAT A MERE PROCEDURAL IRREGULARITY?
“Is the above a mere procedural irregularity or a serious substantive lapse depriving the Court of jurisdiction? Where an irregularity is substantive in nature it renders a process incompetent but when it is merely procedural the Court will set out to do justice and not take a decision that will defeat it. See Odom & Ors Vs. PDP & Ors (2015) 6 NWLR (pt. 1455) 527.
See also Order 5 Rule 1 (1) of Rivers State High Court (Civil Procedure) Rules, 2010where the trial Judge is allowed to treat it as mere irregularity, which may not nullify the steps taken in the proceedings.
The statement of M. D. MUHAMMAD, JSC on how a Court should approach an irregularity is quite apposite. His Lordship said:
“… whenever it is possible to determine a case on the merit, the Court does so by refusing to cling to technicalities. The Court would rather give an aggrieved party the opportunity of being heard. See Dr. Okonjo Vs. Mudiaga Odeje & Ors (1985) 10 S.C. 267 and Joseph Afolabi & Ors Vs. John Adekunle & Ors (1983) 8 S.C. 98.”
–
OBJECTION TO IRREGULARITIES – AN OBJECTION TO IRREGULARITIES MUST BE MADE TIMEOUSLY
“Indeed the Appellant cannot claim to have suffered any injustice by the irregularity. He was in no way deceived as to who the Plaintiff/Claimant was. Besides he delayed his objection and took several fresh steps after his discovery of the irregularity. Objection to irregularities like this must be timeously made. See Order 5 (r.2) (1) of the Rivers State High Court, Civil Procedure Rules, 2010, which reads as follows:
“(1) An application to set aside for irregularity any step taken in the course of any proceedings may be allowed where it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
This was an irregularity on the Writ of Summons, the originating process. After the Defendant was served, he filed 1st Defendant’s Statement of Defence, Written Deposition and Motion on Notice for leave to call additional witness and other processes without applying to set aside the proceedings for the said irregularity. It was too late in the day to raise it at the address stage. –
UNCONTROVERTED FACTS – STATUS OF UNCONTROVERTED FACTS
“What is more, the duties of the Claimants as defined by CW1, Charles Amutadi (see page 10 of record) were not controverted by the Defendants. The duties not having been challenged by the Defendants are deemed accepted and true. See Kopek Construction Ltd Vs. Ekisola (2010) 3 NWLR Part 1182 pg. 618”. –
PERVERSE JUDGMENT – WHEN CAN THE JUDGMENT OF A COURT BE PERVERSE?
“A Judgment can be said to be perverse when it runs counter to the evidence and pleadings or when the learned trial Judge took into account non-existent evidence or ignored glaring evidence on record. See Onu & Ors Vs. Idu & Ors (2006) 12 NWLR (pt. 995) 657. –
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Court of Appeal Rules, 2016|Evidence Act, 2011|Rivers State High Court (Civil Procedure) Rules, 2010|
CLICK HERE TO READ FULL JUDGMENT