Legalpedia Citation: (2024-07) Legalpedia 57658 (CA)

In the Court of Appeal

HOLDEN AT IBADAN

Wed Jul 17, 2024

Suit Number: CA/IB/94/2023

CORAM

Joseph olubunmi kayode oyewole Justice of the Court of Appeal

Abba bello mohammed Justice of the Court of Appeal

Jane esienanwan inyang Justice of the Court of Appeal

PARTIES

MRS. TAIWO TIJANI

APPELLANTS

1. AGBOWORIN OLADITI

RESPONDENTS

AREA(S) OF LAW

FAIR HEARING, CIVIL PROCEDURE, JURISDICTION, APPEAL, EVIDENCE

SUMMARY OF FACTS

Mrs. Taiwo Tijani (Appellant) initiated a case at the Customary Court Grade C, Ibadan, regarding a dispute over land ownership. Dissatisfied with the ruling, Mr. Agboworin Oladiti (Respondent) filed for judicial review through a prerogative writ of certiorari, which was granted by the Customary Court of Appeal in Oyo State. The Customary Court quashed the initial judgment for lack of jurisdiction. Subsequently, the Appellant filed an application seeking to set aside the decision, arguing that she was not served with court processes, thus violating her right to a fair hearing. The lower court dismissed her application, leading her to appeal.

HELD

The Court of Appeal dismissed the appeal, holding that the Appellant was aware of the proceedings, and the lower court’s judgment was not a nullity. The failure to hear the Appellant’s motion was not improper, and the claim of non-service was unsubstantiated. The appeal was dismissed with costs of N250,000 awarded against the Appellant.

ISSUES

1. Whether the failure of the Customary Court of Appeal to hear and determine the Appellant’s motion filed a day before judgment rendered the decision a nullity?
2. Whether the Respondent’s motion was properly served on the Appellant, and whether the failure to comply with the rules of service affected the validity of the judgment?
3. Whether the Appellant’s right to fair hearing was breached due to lack of proper service and consideration of her pending motion?
4. Whether the judgment of the lower court was supported by the evidence before it?

RATIONES DECIDENDI

RIGHT TO FAIR HEARING – FAILURE TO RAISE TIMELY OBJECTIONS TO SERVICE

“A party who has been given the opportunity to present their case cannot claim a violation of fair hearing if they fail to utilize that opportunity. The Appellant had ample opportunity to challenge the proceedings but failed to do so in a timely manner.”

– Per Joseph Olubunmi Kayode Oyewole, J.C.A.

FAILURE TO HEAR PENDING MOTION BEFORE JUDGMENT – NOT GROUNDS FOR NULLITY

“A court’s refusal to hear a motion filed shortly before judgment does not automatically render the judgment a nullity. A party cannot use such a motion to arrest the judgment of the court.”

– Per Abba Bello Mohammed, J.C.A.

CONTRADICTORY AFFIDAVITS OF SERVICE – BURDEN ON APPELLANT TO PROVIDE COUNTER-EVIDENCE

“An affidavit of service by the bailiff of the court enjoys a presumption of regularity unless successfully challenged by credible counter-evidence. Mere denial of service by the Appellant without substantive proof is insufficient.”

– Per Jane Esienanwan Inyang, J.C.A.

A LITIGANT CANNOT CLAIM FAIR HEARING WHEN THEY HAVE FAILED TO APPEAR IN COURT

The right to fair hearing is the opportunity to be heard. Where a party fails to appear despite being given an opportunity, they cannot later complain of being denied a fair hearing.”

– Per Joseph Olubunmi Kayode Oyewole, J.C.A.

NON-SERVICE OF COURT PROCESSES – IMPACT ON JUDGMENT VALIDITY

“Where a party claims non-service, they must promptly object and provide credible evidence to support the claim. The court found that the Appellant was aware of the proceedings, and service had been effected via substituted means.”

– Per Abba Bello Mohammed, J.C.A.

PRESUMPTION OF REGULARITY IN COURT PROCESSES – ROLE OF AFFIDAVITS OF SERVICE

“An affidavit of service filed by the court bailiff is prima facie evidence of proper service. The presumption of regularity in court processes is only rebutted by strong, contradictory evidence.”

– Per Jane Esienanwan Inyang, J.C.A.

FAILURE TO HEAR APPLICATION BEFORE JUDGMENT – ABUSE OF COURT PROCESS

“Attempting to file an application to prevent the delivery of judgment is an abuse of court process. Such motions aimed at arresting judgment are considered improper and should be discountenanced by the court.”

– Per Joseph Olubunmi Kayode Oyewole, J.C.A.

NON-SERVICE OF PROCESS CLAIM – REQUIREMENT FOR PROMPT CHALLENGE

“A litigant who becomes aware of a case must act promptly to challenge any perceived procedural irregularities, such as non-service of process. Failure to do so weakens the claim and affirms the presumption of regularity.”

– Per Abba Bello Mohammed, J.C.A.

PARTICIPATION IN PROCEEDINGS WITHOUT OBJECTING TO SERVICE – EFFECT ON FAIR HEARING CLAIM

“The concept of abuse of court process involves using the judicial process in a manner that is oppressive, vexatious, or aimed at defeating the ends of justice. Filing multiple motions or applications with the intent to delay or frustrate proceedings constitutes an abuse of court process. In this case, the Appellant’s last-minute filing of a motion to arrest the judgment was deemed an abuse of court process, as it was designed to stall the judicial process without any substantive legal basis.”

– Per Joseph Olubunmi Kayode Oyewole, J.C.A.

MERITORIOUS APPLICATION TO SET ASIDE JUDGMENT – REQUIREMENTS FOR SUCCESSFUL CHALLENGE

“To successfully challenge a judgment on grounds of non-service or breach of fair hearing, the Appellant must demonstrate with credible evidence that the judgment was delivered without proper adherence to procedural requirements.”

– Per Joseph Olubunmi Kayode Oyewole, J.C.A.

ROLE OF CONTRADICTORY AFFIDAVITS – BURDEN ON PARTY MAKING ASSERTION

“Where contradictory affidavits are presented, the court must carefully evaluate the evidence. The party making an assertion must substantiate it with credible evidence to counter the presumption of regularity in court proceedings.”

– Per Abba Bello Mohammed, J.C.A.

EFFECT OF LITIGANT’S FAILURE TO PURSUE LEGAL RIGHTS PROMPTLY

“A litigant who fails to promptly pursue their legal rights, including challenging the service of court processes, cannot claim that their right to fair hearing was violated.”

– Per Jane Esienanwan Inyang, J.C.A.

IMPROPER ATTEMPT TO ARREST JUDGMENT – CONSEQUENCES FOR LITIGANT

“A party’s attempt to prevent the delivery of a court’s judgment by filing a motion just before the scheduled judgment date is an abuse of court process, and the court is justified in discountenancing such an application.”

– Per Joseph Olubunmi Kayode Oyewole, J.C.A.

CASES CITED

Not Available

STATUTES REFERRED TO

Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Order 18 Rule 5(5) of the Oyo State Customary Court of Appeal Rules 2018

Section 168 of the Evidence Act 2011

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