Legalpedia Citation: (2023-06) Legalpedia 14524 (CA)

In the Court of Appeal

Holden at Abuja

Thu Jun 22, 2023

Suit Number: CA/A/317/2019

CORAM

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU JUSTICE OF THE COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU JUSTICE OF THE COURT OF APPEAL

MOHAMMED MUSTAPHA JUSTICE OF THE COURT OF APPEAL

PARTIES

TORNO INTERNATIONALE NIGERIA LIMITED APPELANT(S)

 

APPELLANTS

1. DR. TUNJI ABAYOMI
2. TUNJI ABAYOMI & CO
3. DR. INO MIRKOVIC RESPONDENT(S)

 

RESPONDENTS

AREA(S) OF LAW

: APPEAL, COMPANY, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

In a ruling on two interlocutory applications, one filed by the 1st & 2nd Respondents herein, and the other by the Appellant herein, delivered on 6th March 2019, the lower Court (High Court of the Federal Capital Territory, Abuja) granted the 1st & 2nd Respondents’ application for substituted service of the Court processes on the 2nd Defendant in the action through the Appellant. The Appellant’s application for its name to be struck out from the action for non-disclosure of a reasonable cause of action against it was dismissed in the said ruling.

The Appellant, dissatisfied with the entire ruling appealed against the same hence the instant appeal.

HELD

Appeal struck out

ISSUES

Ø Whether the appeal is competent?

Ø Whether the trial Court was right to grant leave to serve the Writ of Summons which has since expired without first renewing same?

Ø Whether the learned trial judge erred in law when it ordered that the originating process meant for the 2nd Defendant be served on the Appellant when it had previously set aside a similar order?

Ø Whether the learned trial Court erred in law when it ordered that the originating processes meant for the 2nd Defendant be served on the Appellant without first ascertaining the existence or otherwise of the 2nd Defendant and the fact that the 2nd defendant resides abroad?

Ø Whether the claim of the 1st and 2nd Respondents disclosed any reasonable cause of action against the Appellant?

 

RATIONES DECIDENDI

PRELIMINARY OBJECTION – WHEN PRELIMINARY OBJECTION IS TO BE CONSIDERED

It is conventional wisdom that the preliminary objection, which is threshold in the nature, must be considered first before anything else. See FIRST BANK vs. T.S.A IND. LTD (2010) LPELR (1283) 1 at 13, GUSAU vs. APC (2019) LPELR (46897) 1 at 7 and SPDCN vs. AMADI (2011) 14 NWLR (PT 1266) 157. – Per U. A. Ogakwu, JCA

NOTICE OF APPEAL – MEANING OF NOTICE OF APPEAL – WHEN THE COURT CAN STRIKE OUT A NOTICE OF APPEAL

By Order 7 Rule 6 of the Court of Appeal Rules, 2021, the Court has the power to strike out a Notice of Appeal when an appeal is not competent or for any other sufficient reason.

The reason for this is not far-fetched. A notice of appeal is an originating process. It is the foundation and substratum of every appeal. Any defect therein renders the appeal incompetent, and the appellate Court will lack the requisite jurisdiction to entertain the appeal. FIRST BANK vs. T.S.A. IND LTD (supra) at 49, UWAZURIKE vs. A-G, FEDERATION (2007) LPELR (3448) 1 at 14, OKWUOSA vs. GOMWALK (2017) LPELR (41736) 1 at 27-28 and OKPABI vs. OGANGWU (2022) LPELR (58092) 1 at 3-4. – Per U. A. Ogakwu, JCA

 

APPEAL – MEANING OF APPEAL

By Order 7 Rule 6 of the Court of Appeal Rules, 2021, the Court has the power to strike out a Notice of Appeal when an appeal is not competent or for any other sufficient reason. The reason for this is not far-fetched. A notice of appeal is an originating process. It is the foundation and substratum of every appeal. Any defect therein renders the appeal incompetent, and the appellate Court will lack the requisite jurisdiction to entertain the appeal. FIRST BANK vs. T.S.A. IND LTD (supra) at 49, UWAZURIKE vs. A-G, FEDERATION (2007) LPELR (3448) 1 at 14, OKWUOSA vs. GOMWALK (2017) LPELR (41736) 1 at 27-28 and OKPABI vs. OGANGWU (2022) LPELR (58092) 1 at 3-4. – Per U. A. Ogakwu, JCA

NOTICE OF APPEAL – WHERE A PARTY IN THE LOWER COURT IS EXCLUDED FROM THE NOTICE OF APPEAL

…it is now settled that an appellant cannot in its notice of appeal exclude parties to an action in the lower Court as the Appellant has done by excluding the name of the 2nd Defendant in the lower Court as a party in this appeal. Where a party in the lower Court is excluded as in this case, the notice of appeal is incompetent and liable to be struck out. See P. P. A. vs. INEC (2012) 13 NWLR (PT 1317) 215 at 237, JOS ELECTRICITY DISTRIBUTION CO. PLC vs. PWAJOK (2021) LPELR (53525) 1 at 15-16 and AMANA vs. IGALA AREA TRADITIONAL COUNCIL (2022) LPELR (57566) 1 at 33-35. The omission of the 2nd Defendant’s name in the Notice of Appeal is therefore fatal and rendered the Notice of Appeal defective and incompetent. The Notice of Appeal being the originating process and spinal cord of the appeal, the defect thereto renders the whole appeal incompetent, and this Court does not have the jurisdiction to entertain the appeal. SHELIM vs. GOBANG (2009) LPELR (3043) 1 at 26-27, OLANREWAJU vs. BON LTD (1994) 8 NWLR (PT 364) 622 and ADELEKAN vs. ECU-LINE N.V. (2006) LPELR (113) 1 at 26-27. – Per U. A. Ogakwu, JCA

REPLY BRIEF – REPLY BRIEF IS NOT A RECITATION OF THE APPELLANTS BRIEF

This is not the function of a Reply Brief. The Reply Brief is not a recitation of the appellant’s brief. See OKONJI vs. NJOKANMA (1999) 12 SCNJ 259 at 277, OLAFISOYE vs. FRN (2004) 4 NWLR (PT 864) 580 at 644 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 6-7. – Per U. A. Ogakwu, JCA

GROUNDS OF APPEAL – WHERE COUNSEL DOES NOT INDICATE GROUNDS OF APPEAL FROM WHICH AN ISSUE IS FORMULATED

Without a doubt, it is desirable to indicate the ground(s) of appeal from which an issue has been formulated. But where this is not done, it is a mere inelegance which cannot render the issue incompetent and for it to be struck out. See UBN LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558 at 578, DIAMOND BANK vs. OPARA (2018) LPELR (43907) 1 at 8-9 and JFS INV. LTD vs. BRAWAL LINE LTD (2010) 18 NWLR (PT 1225) 495 at 520. – Per U.A.Ogakwu, JCA

SUBMISSION – WHEN RESPONDENT MAKES NO SUBMISSION ON AN ISSUE

Let me state that the absence of respondent’s submissions on an issue or indeed a respondent failing to file a brief of argument does not mean that the issue or the appeal must willy-nilly succeed. An appellant is to succeed on the strength or merits of the submissions canvassed in an appeal and not on the absence of a respondent’s answer to the submissions. An appellant is therefore not automatically entitled to judgment on an issue simply because the respondent neglected to or failed to reply to an issue canvassed by the Appellant. Before an appellant can succeed in such circumstances, he has the legal duty by his submissions to convince the Court that the appeal is sustainable in law. The appellant must succeed or fail on the merits and sustainability of his submissions, and not the absence of a response from the respondent. See ECHERE vs. EZIRIKE (2006) LPELR (1000) 1 at 20, AKAS vs. MANAGER (2001) 8 NWLR (PT 715) 436 at 442, AJONYE vs. NWACHUKWU (2011) LPELR (3677) 1 at 9-10, SAIPEM CONTRACTING NIG LTD vs. FIRS (2018) LPELR (45118) 1 at 66 and KANTOMA vs. WUTA(2022) LPELR (57060) 1 at 6-7. So, notwithstanding the Appellant’s perception as to what the 1st & 2nd Respondents did or failed to do, it still behoves the Court to consider the merits of the Appellant’s submissions and ascertain if there is any justification in the Appellant’s complaints against the decision of the lower Court: VANGUARD MEDIA LTD vs. ALI (2022) LPELR (57800) 1 at 4, UNITY BANK PLC vs. BOUARI (2008) LPELR (3411) 1 at 24-25 and CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 17. The Court has the bounden duty to consider the merits of the appeal and all the issues argued. – Per U. A. Ogakwu, JCA

SERVICE – DUTY OF THE COURT WHEN MAKING AN ORDER FOR SERVICE

In the diacritical circumstances, I do not think it behooved the lower Court to ascertain if the writ of summons had expired or not before ordering for substituted service. It can only but be the 1st & 2nd Respondents’ funeral if, having obtained the order for substituted service, they proceeded to serve an expired writ of summons. As already stated, the lower Court was not obligated to ascertain if the Court processes were validly issued before exercising discretion to order substituted service. – Per U. A. Ogakwu, JCA

SERVICE – THE OBJECT OF SERVICE OF COURT PROCESSES

The object of all types of service of Court process, whether personal or substituted, is to give notice to the party on whom service is to be effected so that he might be aware of the pending action and resist the action in the way and manner he can. See OKOYE vs. CENTRE POINT MERCHANT BANK LTD (2008) 15 NWLR (PT. 1110) 335, AKEREDOLU vs. ABRAHAM (2018) 10 NWLR (PT. 1628) 510 at 539 and NCSU vs. EKASA (2021) LPELR (54752) 1 at 7. It therefore follows that it is after service has been effected that any issue as to the validity of processes can be raised as a resistance to the action; it was not a pre-condition in an application for substituted service for the Court to consider if the validly issued processes were still valid. – Per U. A. Ogakwu, JCA

COURTS – CONDUCT OF APPELLATE COURT IN RELATION TO APPEALS – WHETHER THE DECISION APPEALED AGAINST IS CORRECT

It is rudimentary law that an appellate Court is concerned with whether the decision appealed against is correct and not whether the reasons given for the decision are correct. See NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 189 at 220, DAIRO vs. UBN PLC (2017) 16 NWLR (PT 1059) 99 at 161 and POATSON GRAPHIC ARTS TRADE LTD vs. NDIC (2017) LPELR (42567) 1 at 36.– Per U. A. Ogakwu, JCA

SERVICE – DUTY OF THE LOWER COURT TO MAKE AN ORDER FOR SERVICE ON AGENT

Order 11 Rule 5 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004… The above provision involves the exercise of discretion by the lower Court and requires that the lower Court may, under Order 11 (5) (b), order that the document be delivered to some person being an agent of the person to be served. – Per U. A. Ogakwu, JCA

COURTS – CONDUCT OF APPELLATE COURTS TO EXERCISE OF DISCRETION BY LOWER COURTS

The paramount consideration is whether the exercise of discretion by the lower Court was a wrong exercise of judicial discretion. It must be borne in mind that the discretion in the matter is that of the lower Court and not of this appellate Court. It is only where the lower Court failed to exercise discretion judicially and judiciously that this Court has the right, indeed the duty, to intervene. See ANYAH vs. A. N. N. LTD (1992) 6 NWLR (PT. 247) 319 at 323 and 324, OKERE vs. NLEM (1992) LPELR (2443) 1 at 27, NDUKWE vs. UNION BANK (2021) 4 NWLR (PT 1765) 165 and AGBAJE vs. ADELEKAN (1990) LPELR (228) 1 at 30. In the words of the Onnoghen, JSC (later CJN) in IKENTA BEST (NIG.) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 39-40:

“It is also settled that an appellate Court should be wary of setting aside the exercise of discretion by the lower Court as the Court is not at liberty to substitute its own exercise of discretion for the discretion already exercised by the Judge or lower Court except where the appellate Court or Tribunal reaches a clear conclusion that there has been a wrongful exercise of discretion, that no weight or no sufficient weight was given relevant consideration, or that the exercise was done mala fide, arbitrarily, illegally or either considering extraneous matter or, I may add based on speculated fact(s).”

See also EHINLE vs. IKORODU LOCAL GOVT (2020) 1 NWLR (PT 1757) 279, NZEKWE vs. ANAEKWENEGBU (2019) 8 NWLR (PT 1674) 235 at 239, EDU vs. PRIME INVESTMENT & CORPORATE SERVICES LTD (2021) LPELR (56129) 1 at 33-34 and SULE vs. SULE (2021) LPELR (55788) 1 at 33-34. ​The onus is on the party complaining to show that the discretion was wrongly exercised in favour of the winning party; he must bring his case within the known exceptions to the general rule that an appellate Court will not usually make a practice of interfering with the exercise of discretion by a lower Court. Accordingly, it is the Appellant’s duty and responsibility to show how the exercise of discretion by the lower Court is wrong: UNILAG vs. OLANIYAN (1985) 1 NWLR (PT 1) 156, 7UP BOTTLING CO. LTD vs. ABIOLA & SONS LTD (1995) 3 NWLR (PT 383) 257 at 285 and EDU vs. PRIME INVESTMENT & CORPORATE SERVICES LTD (supra). – Per U. A.Ogakwu, JCA

CAUSE OF ACTION – MEANING OF CAUSE OF ACTION

Now, the allegation of want of reasonable cause of action involves two interrelated elements.

The first element is that the plaintiff has no cause of action against the defendant. The second is that even though a cause of action is disclosed, that cause of action is not reasonable.

The phrase ‘cause of action’ has been variously defined in a plethora of cases by our Courts as the fact or combination of facts which give rise to a right to sue. It consists of two elements,namely, the wrongful act of the defendant which gives the plaintiff the right to complain and the consequent damage due to the wrongful act. See AKIBU vs. ODUNTAN (2000) 13 NWLR (PT 685) 446 at 463, EGBUE vs. ARAKA (1988) 3 NWLR (PT 84) 598 at 613, EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20 and ECOBANK (NIG.) PLC vs. GATEWAY HOTELS LTD (1999) 11 NWLR (PT 627) 397 at 418. Cause of action is the factual basis or some factual situation, a combination of which makes the matter in litigation an enforceable right or an actionable wrong. See IBRAHIM vs. OSIM (1988) 1 NNSC 1184 at 1194 and TUKUR vs. GOVT OF GONGOLA STATE (1989) 4 NWLR (PT 117) at 581. In determining whether a reasonable cause of action is disclosed, the Courts look at and examine the plaintiff’s processes. See AJAYI vs. MILITARY ADMINISTRATOR, ONDO STATE (1997) 5 NWLR (PT 503) 237, 7UP BOTTLING CO. LTD vs. ABIOLA (2001) 29 WRN 98 at 116 and OTUBU vs. OMOTAYO (1995) 6 NWLR (PT 400) 247. The processes must set out the plaintiff’s legal right and the obligation of the defendant. It must then go on to set out facts constituting the infraction of the plaintiff’s legal right or failure of the defendant to fulfil his obligation in a such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks: THOMAS vs. OLUFOSOYE (1986) 1 NWLR (PT 18) 669, EGBE vs. ADEFARASIN (supra) and RINCO CONSTRUCTION CO LTD vs. VEEPEE INDUSTRIES LTD (2005) 9 MJSC 197 at 204. It is sufficient for a Court to hold that a cause of action is reasonable once the processes filed disclose some cause of action or some questions fit to be decided by a Judge, notwithstanding that the case is weak or not likely to succeed. See also OJUGO vs. DELTA STEEL COMPANY LTD (2014) LPELR (24499) 1 at 33-34 and ORIOYE vs. ABINA (2019) LPELR (47864) 1 at 23-26. – Per U. A. Ogakwu, JCA

CAUSE OF ACTION – WHEN A CAUSE OF ACTION IS DISCLOSED

In so far as the processes filed disclose some cause of action or some questions fit to be decided by a Judge, the perceived weakness of the case and/or even the fact that the case is not likely to succeed are not sufficient reasons to hold that a reasonable cause of action has not been disclosed. The proper course for a defendant to take is to wait and take advantage of the weakness; if any, of the case of the plaintiff when the action goes to trial. See IBRAHIM vs. OSIM (supra) at 1198, A-G FEDERATION vs. A-G ABIA (2001) 40 WRN 1 at 52 and MOBIL PRODUCING UNLIMITED vs. LASEPA (2003) 1 MJSC 112 at 132.

​In considering whether the plaintiff’s processes disclose a reasonable cause of action, no fact introduced aliunde can be relied upon. The party contending that no reasonable cause of action is disclosed must accept the facts as averred and the Court will determine the issue on the plaintiff’s processes. See IBRAHIM vs. OSIM (supra) at 1197, SHELL BP PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD vs. ONASANYA (1976) 6 SC 89 at 94 and CHEVRON (NIG.) LTD vs. LONESTAR DRILLING (NIG.) LTD (2007) 16 NWLR (PT 1059) 168 at 179. – Per U. A. Ogakwu, JCA

CAUSE OF ACTION – WHEN IT CAN BE SAID THAT THERE IS A CAUSE OF ACTION

I have insightfully considered the facts on which the 1st & 2nd Respondents anchored their action as analysed above, and the facts are such that the law will recognise as giving them a substantive right to ventilate the reliefs sought for in the action. Their action has some chance of success when only the averments in their processes are considered. See COOKEY vs. FOMBO (2005) 15 NWLR (PT 947) 182 at 202, OJUGO vs. DELTA STEEL COMPANY LTD (supra) and HARUNA vs. KOGI STATE HOUSE OF ASSEMBLY (2005) 6 WRN 121 at 139-141. If the Appellant and other defendants in the action are not able to raise a proper defence, the 1st & 2nd Respondents may likely succeed in the relief or remedy they seek: NWAKA vs. SHELL (2003) 3 MJSC 136 at 149. Consequently, it cannot be doubted that the facts presented in the processes filed by the 1st & 2nd Respondents disclose some questions fit to be decided by a Judge, therefore a reasonable cause of action is disclosed against the Appellant. See OGUNSANYA vs. DADA (1992) 4 SCNJ 162 at 169 and YUSUF vs. AKINDIPE (2000) 8 NWLR (PT 669) 376. – Per U. A. Ogakwu, JCA

CASES CITED

NIL

STATUTES REFERRED TO

1.   Court of Appeal Rules, 2021
2. High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004
3. High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018
4. Companies and Allied Matters Act.

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