SHETTIMA & ORS v. SHETTIMA
CITATION: (2016) LPELR-40178(CA)
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ON FRIDAY, 4TH MARCH, 2016
A)
In the Court of Appeal
In the Jos Judicial Division
Holden at Jos
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Suit No: CA/J/27/2011
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Before Their Lordships:
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ADZIRA GANA MSHELIA
R
ADAMU JAURO
LP
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JOSEPH TINE TUR
Justice, Court of Appeal
6)
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RATIO DECIDENDI
Justice, Court of Appeal
Between
HARUNA SHETTIMA
HAJIYA LADI SHETTIMA
HADIZA SHETTIMA
AISHATU SHETTIMA
MRS. HAJARATU SHETTIMA
Justice, Court of Appeal
Appellant(s)
And
- Respondent(s)
1
COURT - JURISDICTION: Whether there are
occasions when lack of jurisdiction cannot be
successfully argued in the trial Court or in the Court
of Appeal without evidence being tendered
"There are however occasions when lack of
jurisdiction cannot be successfully argued in the trial
Court or in the Court of Appeal without evidence
being tendered in proof of the assertion. See Dweye
vs. Iyomahan (1983) 8 SC 76; Chikwe vs.Obiora
A)
(1960) 5 FSC 258; Adetiye vs. Amodu (1969) 1 NMLR
(C
62 and Aburime vs. The Secretary, Assemblies of
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Meaning of partition
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LAND LAW - ALLOTMENT AND PARTITION:
"Partition is defined as "1. Something that separates
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one part of a space from another. 2. The act of
6)
dividing; especially the division of real property held
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jointly or in common by two or more persons into
individually owned interests." See Black'??s Law
(2
2
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18, Paras. D-E) - read in context
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God Mission (1952) 14 WACA 185."Per TUR, J.C.A. (P.
Dictionary, 9th edition, page 1229; Taiwo vs. Taiwo
(1958) 3 FSC 80 at 82 and Idewu vs. Hausa 13 NLR
96. Partition of family land results into a division of
co-ownership. See Owoade vs. Omitola (1988) 5 SCNJ
1 at 12; Balogun vs. Balogun 9 WACA 78 at 82. "Per
TUR, J.C.A. (Pp. 6-7, Paras. D-A) - read in context
APPEAL
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FRESH
ISSUE(S)/POINT(S)/QUESTION(S): Whether a case
that was not raised in the lower court can be raised
in the Appeal Court for the first time
"The question whether there was proper service of
the processes should have been canvassed in the
Court below supported by oral and documentary
Exhibits. Where the issue was controversial, parties
could have given evidence and be subjected to
A)
cross-examination. See Falobi vs. Falobi (1976) 1
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N.M.L.R. 169; Eboh vs. Oki (1974) 1 SC 179 at
78
189-190 and Falola vs. UBN Plc (2005) 2 SCNJ 209.
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Issues not raised in the Court below can only be
raised in this Court with leave first had or obtained
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C-E) - read in context
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by the party raising it."Per TUR, J.C.A. (P. 17, Paras.
(2
3
PRACTICE AND PROCEDURE - SERVICE OF
COURT PROCESSES: Effect of failure to serve court
processes before the commencement of hearing to
the delivery of judgment
"?Service of processes before an action is
commenced goes to the issue of jurisdiction of the
Court to entertain the claim. Where there is dispute
as to whether parties have been served within or
outside jurisdiction, the affidavit of service and the
A)
processes served have to be produced and tendered
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in the Court of trial as evidence of service. See S.G.B.
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(Nig.) Ltd. vs. Adewunmi (2003) FWLR (Pt.158) 1181
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at 1192 paragraphs "??A"?-"??D."? Failure to effect
service of processes before the commencement of
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hearing to the delivery judgment constitutes an
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infringement of the right of fair hearing. See
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Lawrence-Emuakpor vs. Ukaube (1975) 12 SC 41 at
47; Okoye vs. C.P.M.B. Ltd. (2008) 15 NWLR
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(Pt.1110) 335 at 351 and Alhaji J.A. Odutola vs.
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Inspector Kayode (1994) 2 NWLR (Pt. 324) 1 at page
15. The issue of lack of service of processes being a
(2
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question of fact requires oral and documentary
evidence. "Per TUR, J.C.A. (Pp. 17-18, Paras. E-C) read in context
5
COURT - JURISDICTION: Whether there are
occasions when lack of jurisdiction cannot be
successfully argued in the trial Court or in the Court
of Appeal without evidence being tendered
"There are however occasions when lack of
jurisdiction cannot be successfully argued in the trial
Court or in the Court of Appeal without evidence
being tendered in proof of the assertion. See Dweye
vs. Iyomahan (1983) 8 SC 76; Chikwe vs.Obiora
A)
(1960) 5 FSC 258; Adetiye vs. Amodu (1969) 1 NMLR
(C
62 and Aburime vs. The Secretary, Assemblies of
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ACTION - STATEMENT OF DEFENCE : Effect of
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failure of a defendant to file a defence to an action
"The information on every writ of summons to be
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served within or outside the jurisdiction of a Court
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usually demands the entry of appearance within the
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stipulated time frame followed by a warning that
failure to do so may enable the plaintiff to proceed
(2
6
01
18, Paras. D-E) - read in context
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God Mission (1952) 14 WACA 185."Per TUR, J.C.A. (P.
with hearing and obtain judgment from that Court. It
is not enough to enter a memorandum of
appearance without a Statement of Defence. Without
a Statement of Defence being entered by a
defendant the claims of the plaintiff remains
unchallenged. No one sets out to prove at the
hearing what has not been challenged. See Olale vs.
Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at 102. "Per TUR,
J.C.A. (P. 19, Paras. C-F) - read in context
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ACTION - STATEMENT OF DEFENCE : Effect of
failure of a defendant to file a defence to an action
"The information on every writ of summons to be
served within or outside the jurisdiction of a Court
usually demands the entry of appearance within the
stipulated time frame followed by a warning that
failure to do so may enable the plaintiff to proceed
with hearing and obtain judgment from that Court. It
is not enough to enter a memorandum of
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appearance without a Statement of Defence. Without
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a Statement of Defence being entered by a
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defendant the claims of the plaintiff remains
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unchallenged. No one sets out to prove at the
hearing what has not been challenged. See Olale vs.
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Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at 102. "Per TUR,
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COURT - DISCRETION OF COURT: Whether the
6)
decision to grant or refuse an application for an
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adjournment is at the discretion of the trial judge
"The decision to grant or refuse an application for an
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8
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J.C.A. (P. 19, Paras. C-F) - read in context
adjournment involves the exercise of a judicial
discretion thrust upon the learned trial Judge in
whose Court the proceedings are conducted."Per
TUR, J.C.A. (P. 21, Paras. D-E) - read in context
LEGAL PRACTITIONER - COUNSEL/CLIENT
RELATIONSHIP: Whether the relationship between
a legal practitioner and a client is contractual
"Counsel are reminded that the relationship between
a Legal Practitioner and a client is contractual. See
Edozien vs. Edozien (1993) 1 SCNJ 166 at 189;
Mosheshe vs. N.S.P. Ltd. (1987) 2 NWLR (Pt. 55) 110
at 119 and Adewunmi vs. Plastex Nig. Ltd. (1986) 6
SC 214 at 223."Per TUR, J.C.A. (P. 22, Paras. D-E) -
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read in context
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PRACTICE AND PROCEDURE - FILING OF COURT
PROCESSES: Whether it is the responsibility of the
client to prepare and file processes in court
"The preparation and filing of processes such as
pleadings in the Court is not the responsibility of the
client once a Counsel is briefed and filed a
memorandum of defence. See Long-John vs. Blakk
(1998) 5 SC 68. There is the presumption that
Counsel had adequate instructions or was briefed by
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the client before Counsel proceeded to enter
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memorandum of appearance. Therefore, the filing or
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non-filing of pleadings for nearly over a year or so
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thereby causing undue delay in the speedy trial of
the suit should be attributable to Counsel but not the
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client. If the fault or blame is being attributed to the
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client, there should be evidence from that client
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admitting the default or neglect to the satisfaction of
the Court. The Supreme Court has held that it is not
6)
right to visit the sins of Counsel on the litigant. See
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Ibodo vs. Enarofia (1980) 5-7SC 42; Akinyede vs. The
Appraiser (1971) 1 All NLR 162; Doherty vs. Doherty
(2
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(1964) 1 All NLR 299; Ahmadu vs. Salau (1974) 1 All
NLR (Pt. 2) 318 and Bowaye vs. Adediwura (1976) 6
SC 143. But the above principles are limited to
procedural irregularities or blunders committed by
Counsel in the manner of filing processes and
conducting proceedings. See Akanbi vs. Alao & Anor.
(1989) All NLR 424 at 440 and Bamaiyi vs. The State
(2003) 7 NWLR (Pt.842) 47 at 64 paragraphs
"??B"?-"??C"?.Per TUR, J.C.A. (Pp. 23-24, Paras. CC) - read in context
LEGAL PRACTITIONER - DUTY OF COUNSEL:
Statutory provision as regards the duty of counsel to
his client
"Rule 14 (1)-(5) of the Rules of Professional Conduct
for Legal Practitioners, 2007 further provides
thus:“14 (1) It is the duty of a lawyer to devote his
attention, energy and expertise to the service of his
client and, subject to any rule of law, to act in a
manner consistent with the best interest of the
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client.(2) Without prejudice to the generality of
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paragraph (1) of this rule, a lawyer shall:-(a) Consult
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with his client in all questions of doubt which do not
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fall within his discretion; (b) Keep the client informed
of the progress and any important development in
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the cause or matter as may be reasonably
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necessary; (c) Warn his client against any particular
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risk which is likely to occur in the course of the
matter;(d) Respond as promptly as reasonably
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possible to request for information by the client; and
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(e) Where he considers the client'??s claim or
defence to be hopeless, inform him accordingly. (3)
(2
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When representing a client, lawyer may, where
permissible, exercise his independent professional
judgment to waive or fail to assert a right or position
of his client.(4) It is the duty of a lawyer employed in
respect of a Court case to be personally present or
be properly represented throughout the proceedings
in Court. (5) Negligence in handling of a clientâ?'s
affairs may be of such a nature as to amount to
professional misconduct."Per TUR, J.C.A. (Pp. 32-33,
Paras. B-C) - read in context
(2
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(C
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JOSEPH TINE TUR, J.C.A.(Delivering the Leading
Judgment): The appellants and the respondent lay claim to
certain property situate at Nos. 1 and 2 Gambole Road, Old
GRA, Maiduguri, Borno State. The respondent instituted
this action in the High Court of Justice, Maiduguri, Borno
State on 20th February, 2009. Paragraphs 4-16 of the
Statement of Claim pleaded the following facts:
"€œ4. The plaintiff avers that on 2nd September, 1974
a Certificate of Occupancy was granted to her
husband, Alhaji Yunusa Shettima entitled NE/1962
and registered as No.14 at page 14 in Volume 4
(Certificates of Occupancy) at the Lands Registry,
Maiduguri. The plaintiff shall at the trial rely on the
said Certificate of Occupancy and file No.NE/1962.
5. On or about 24th July, 1991 the said Alhaji Yunusa
Shettima (now deceased) assigned his right, title and
interest over the said property covered by Certificate
of Occupancy No.NE/1962 lying and situate at Nos.1
and 2, Gambole Road, Old GRA, Maiduguri to the
plaintiff for a consideration of N40,000.00. The
plaintiff shall at the trial found on the Deed of
Assignment registered as No.578 at page 578 in
1
Vol.10 (MISC) at the Lands Registry, Maiduguri on
25th July, 1991.
5a. Pursuant to said assignment, the assignor handed
over the Certificate of Occupancy over the said
property to the plaintiff.
6. The said landed property assigned above, contained
2 main houses with other tenement buildings lying
A)
and situate at Nos. 1 and 2 Gambole Road, Old GRA,
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Maiduguri as shown and described in the Deed of
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Assignment.
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7. The plaintiff during the life time of her husband
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(the Assignor) pursuant to the aforesaid assignment
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exercised various acts of ownership and enjoyment of
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the property including financing the repairs of the
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said property; mortgaging the said property to secure
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a loan from the Nigeria Agricultural and Co-operative
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Bank Ltd. on 30th October, 1993. Plaintiff shall at the
trial found on these and sundry relevant documents.
8. The plaintiff avers that on 24th April, 2004 her
husband (the Assignor) of the aforesaid property died
and all his landed properties in Maiduguri were
shared by the Sharia Court in Maiduguri.
9. Sometimes in May, 2004 the defendants jointly and
severally by themselves or others representing them
2
started laying claims to the joint ownership of the
said property assigned to the plaintiff since 1991
claiming that it was not the property of the plaintiff.
10. The plaintiff avers that she has been living on part
of the property in dispute unencumbered.
11. The plaintiff avers that part of the property in
dispute was rented over to tenants and since May,
(C
A)
2004 till date the defendants by themselves and/or
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their agents are now collecting the rents to the
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detriment of the plaintiff.
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12. All efforts to restrain the defendants by
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themselves or their agents from collecting the rents
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and to allow the plaintiff who is the lawful owner of
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the said property to collect same has proved abortive.
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13. Between May, 2004 and 31st December, 2008 the
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defendants by themselves and their agents have
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collected rents over N8,499,000.00 and thus
depriving the plaintiff of the same rents.
Particulars of Rents (special Damage)
(A) Monthly Rents
(i) Monthly rent from Block “A” N20,000 x 12mths x
4yrs 7months (May, 2004 – December, 2008).
(ii) Monthly rent from Block “B” N10,000 x 12mths. x
4yrs. 7months.
3
(iii) Monthly rent from Block “C” N15,000 x 12mths x
4yrs. 7months.
(iv) Monthly rent from Block “D” N31,500 x 12mths x
4yrs. 7months.
(v) Monthly rent from Block “E” N12,600 x 12mths x
4yrs. 7months.
(vi) Monthly rent from Block “C-D” N17,500 x 12mths
x 4yrs. 7months.
Sub – Total N106,100 N1,273,200 = N5,839,000.
A)
(B) Yearly Rents
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(i) Inyang Lucy (2004-2008) 4yrs x N35,000 =
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N140,000.
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(ii) Alh. Waziri Kojo (2004-2008) 4yrs x N80,000 =
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N320,000.
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(iii) Abdulrazak Azeez (2004-2008) 4yrs x N80,000 =
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N320,000.
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N320,000.
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(iv) Bunmi Olaiyemola (2004-2008) 4yrs x N80,000 =
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0
(v) Dr. Onuoha (2004-2008) 4yrs x N120,000 =
N480,000.
(vi) Usman Hassan Police (2004-2008) 4yrs x
N270,000 = N1,080,000.
Sub – Total N2,660,000.00
Grand Total N8,499,000.00
The plaintiff shall at the trial rely on all documents of
rents.
14. The plaintiff avers that the above actions of the
defendants by themselves and their agents has caused
and still causing her untold damage, loss, anguish
and embarrassment.
15. The plaintiff shall at the trial
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contend that she is the bonafide owner of the
property in dispute and the actions of the Defendants
and their agents however called constituted and still
constitutes a violation of her right to the said
property.
16. WHEREOF the plaintiff claims against the
A)
defendants jointly and severally for:
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(i) A declaration that the plaintiff is the bonafide
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holder of title to all that property covered by
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Certificate of Occupancy No.NE/1962 known as Nos. 1
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and 2 Gambole Road, Old GRA, Maiduguri by virtue of
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the Deed of Assignment registered as No. 578 at page
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578 in Vol.1 (MISC) on 25th July, 1991 at the Lands
Registry, Maiduguri.
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6)
(ii) Perpetual injunction restraining the defendants
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jointly and severally by themselves, their agents,
assigns, representatives however called from claiming
ownership of the aforesaid property and from further
trespassing upon the aforesaid property or doing
anything injurious to the title of the plaintiff to the
aforesaid property covered by Certificate of
Occupancy No.NE/1962.
(iii) Claim for refund of rents of N8,499,000 collected
from tenants by the defendants or their agents in the
house and tenement buildings on the
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property from May, 2004 – 31st December, 2008
and other rents that may became due after institution
of this suit.
(iv) Mandatory injunction restraining the defendants
by themselves or their agents however called from
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(v) General damages of N500,000.00."
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further collecting rents on the said property.
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The effect of pleading in paragraph 8 of the Statement of
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Claim that on 24th April, 2004 after the husband of the
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respondent died "...all his landed properties in
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Maiduguri were shared by the Sharia Court in
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Maiduguri" is that partition of the hitherto joint property
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in the lifetime of the late husband was effected by the
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Sharia Court in Maiduguri. Partition is defined as "1.
Something that separates one part of a space from
another. 2. The act of dividing; especially the division
of real property held jointly or in common by two or
more persons into individually owned interests." See
Black'€™s Law Dictionary, 9th edition, page 1229;
Taiwo vs. Taiwo (1958) 3 FSC 80 at 82 and Idewu vs.
Hausa 13 NLR 96. Partition of family land results into a
division of co-ownership. See Owoade vs. Omitola
6
(1988) 5 SCNJ 1 at 12; Balogun vs. Balogun 9 WACA
78 at 82.
The 2nd appellant entered a memorandum of appearance
on 25th March, 2009 without a statement of defence. The
1st and 3rd appellants neither entered a memo nor a
statement of defence. The respondent proved her case in
A)
the Court below. The learned trial Judge held at page 127
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lines 10 to page 128 lines 1-4 of the printed record read as
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follows:
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"The summons, statement of claim and all other
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Court’s processes were served on all the
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defendants. The 1st, 3rd and 4th defendants were
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served by substituted service by the order of the
Court dated 13th April, 10th June, 2009. The 2nd
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defendant was served by the normal service process.
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The 2nd defendant entered conditional appearance.
She did not file statement of defence. The 1st, 3rd
and 4th defendants did not file memorandum of
appearance. They did not file statement of defence.
The plaintiff testified and tendered exhibits to prove
her case. After the taking of evidence, Oru, Esq. for
the plaintiff addressed the Court. Learned Counsel
submitted that in civil cases, the standard of proof is
on the preponderance of evidences or on
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the balance of probabilities. But Exhibits “A” to
“H”, it was submitted, the plaintiff has proved
her title to the property of land in dispute. This is so
because, it was submitted, the evidence is not
controverted, the Court is to rely on same in deciding
or resolving the controversy between parties. The
case of Ibwa vs. Imani (2001) 2 MJSC (Pt.1) 1 at 21
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was cited to buttress the submissions (supra). Where
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the evidence on one side is strong and not challenged,
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the burden of proof is discharged by minimal
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evidence. The case of CBN vs. Okogi (2004) 10 NWLR
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(Pt.882) page 488 was cited in aid."
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The learned trial Judge held at page 133 lines 21 to page
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134 lines 1 of the printed record as follows:
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"€œThe evidence of the plaintiff is not challenged. The
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defendants, though served with the Writ of Summons
and the statement of claim, neglected or failed to file
their statements of defence. The effect of the failure
of the defendants to file statements of defence is that
the case of the plaintiff is not challenged. The case of
the plaintiff would therefore succeed on minimal
evidence."
The learned trial Judge made
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the following orders at page 140 lines 15 to page 141 lines
1-14 of the printed record:
"In sum, the plaintiff’s case succeeds as follows:
(i) A declaration that she is the bonafide holder of
title to all that property covered by Certificate of
Occupancy No.NE/1962 known as Nos. 1 and 2,
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Gambole Road, GRA, Maiduguri by virtue of the Deed
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of Assignment registered as Nos. 578 at page 578 in
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Vol.1 (MISC) on 25th July, 1991 at the Lands
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Registry, Maiduguri is hereby granted.
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(ii) An order of perpetual injunction restraining the
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defendants jointly and severally by themselves, their
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agents, assigns, representatives however called from
claiming ownership of the said property, and from
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6)
further trespassing upon the said property, or doing
(2
anything injurious to the title of the plaintiff to the
said property covered by Certificate of Occupancy
No.NE/1962 is hereby made.
(iii) The claim for refund of rents of N8,499,000.00
collected from tenants by the defendants or their
agents in the house and tenement buildings on the
property from May, 2004 to 31st December, 2008 and
other rents that may become due after institution of
this suit
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is hereby not granted.
(iv) An order of mandatory injunction restraining the
defendants by themselves or their agents however
called from further collecting rent in the said
property is hereby made.
(v) General damages of N400,000.00 (Four Hundred
Thousand Naira) is hereby assessed and awarded to
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the plaintiff against the defendants jointly and or
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severally.”
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The judgment was delivered on 28th October, 2010 by I.S.
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Bdliya, J., now of the Court of Appeal. The appellants have
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challenged the judgment in a Notice of Appeal filed on 30th
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November, 2010 having six (6) grounds. The following four
issues were formulated for determination in the
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6)
appellants’ brief of argument to wit:
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“(a) Whether there was proper service on all the
appellants especially the 2nd appellant. Ground 1.
(b) Whether the Writ of Summons which was in
breach of provision of Sections 97 and 99 of the
Sheriffs and Civil Processes Act was competent as to
confer jurisdiction on the Court. Ground. 2.
(c) Whether the refusal of the trial Court to grant the
application for adjournment sought by the 2nd
appellant or order for hearing notice to be issued on
10
her after the withdrawal of her Counsel did not
amount to denial of her right to fair hearing. Ground
3.
(d) Whether the denial of the appellants especially
the 2nd appellant right of final address did not
occasion miscarriage of justice. Ground 4.”
No issue was formulated in respect of grounds 5 and 6 in
the Notice of Appeal. They are deemed abandoned.
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Grounds 5 and 6 are struck out.
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The respondents distilled the following four issues for
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consideration:
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“(i) Whether there is a competent appeal before
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this Court. Settled on the preliminary objection.
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(ii) Whether or not issue (a) which was argued before
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this Court based on ground one is an issue formulated
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outside the ground and if the answer is yes whether
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all the arguments thereon goes to no issue. Settled
from ground 1.
(iii) Whether or not the mere non stating on the face
of the Writ that the Respondents who were served
outside jurisdiction have 30 days within which to
enter appearance, renders the whole proceeding
conducted thereon, without objection, a nullity on
appeal when same was not challenged at the trial
Court. Settled from ground 2.
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(iv) Considering the special circumstances of this
case, whether or not the refusal of the trial Court to
grant the 2nd appellant Counsel’s application for
the adjournment he sought and the subsequent
proceeding with the case by the trial Court amounted
to a denial of fair hearing. Settled from grounds 3 and
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4.”
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The learned Counsel to the respondent filed and argued a
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preliminary objection to the hearing of this appeal as
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follows:
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"€œTAKE NOTICE that at the hearing of this appeal,
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the respondent will raise a preliminary objection to
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the competence of the Notice of Appeal on which this
appeal was argued and will ask the Court to strike out
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the entire appeal for want of competence.
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AND FURTHER TAKE NOTICE that the grounds upon
which the objection will be raised are as follows:
(i) There is nothing before this Court to show that the
appeal was actually filed and paid for there being no
receipt evidencing payment thereof.
(ii) The Notice of Appeal contravenes Order 6, Rules 1
and 2 (1) and Form 3 of the Court of Appeal Rules,
2011 in that it does not contain all the names and
addresses of the parties directly affected by the
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appeal.
RELIEF SOUGHT:
An order of this Court striking out the notice of
appeal dated 30th November, 2010 upon which the
appeal was argued as being incompetent."
The Notice of Appeal is at pages 161 to 165 of the printed
A)
record. At page 161 of the Notice of Appeal appears the
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following entries in red biro "€œ0614887/30-11-2010." At
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Statement from the Court below:
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page 1 of the printed record appears the Registrar’s
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The plaintiff suit the defendants for the following
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reliefs:
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(1) A declaration that the plaintiff is the bonafide
holder of title to all that property covered by
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6)
Certificate of Occupancy No.NE/1962 known as Nos. 1
(2
and 2 Gambole Road, Old GRA, Maiduguri by virtue of
the Deed of Assignment registered as No.578 at page
578 in Vol.1 (MISC) on 25th July, 1991 at the Lands
Registry, Maiduguri.
(2) Perpetual injunction restraining the defendants
jointly and severally by themselves, their agents,
assigns, representatives however called from claiming
ownership of the aforesaid property and from further
trespassing upon the aforesaid property or doing
anything injurious to the title of the plaintiff to the
13
aforesaid property covered by Certificate of
Occupancy No.NE/1962.
(3) Claim for refund of rents of N8,499,000 collected
from tenants by the defendants or their agents in the
house and tenement buildings on the property from
May, 2004 – 31st December, 2008 and other rents
that may became due after institution of this suit.
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(4) Mandatory injunction restraining the defendants
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by themselves or their agents however called from
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further collecting rents on the said property.
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(5) General damages of N500,000.00.”
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0
To prove her case, the plaintiff testified and tendered
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Exhibits. The 2nd defendant entered conditional
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appearance. She did not file statement of defence.
The 1st, 3rd and 4th defendants did not file
6)
memorandum of appearance. They did not file
(2
01
statement of defence. After the taking of evidence,
the plaintiff’s Counsel addressed the Court.
After considering the evidence before the Court and
the Exhibits tendered, the Court entered judgment in
favour of the plaintiff.
Dissatisfied, the defendants now appeal against the
said judgment to Court of Appeal. Conditions of
appeal perfected
14
within time.”
The Registrar has clearly stated inter alia that
“Dissatisfied, the defendants now appeal against the
said judgment to Court of Appeal. Conditions of
appeal perfected within time.” This was endorsed on
“12th January, 2011” and stamped by the “Principal
Registrar (Appeals).” There is presumption of regularity
A)
under Section 167 (c) and 168 (1) and (2) of the
(C
Evidence Act, 2011 which reads as follows:
78
“167. The Court may presume the existence of any
01
fact which it deems likely to have happened, regard
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shall be had to the common course of natural events,
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human conduct and public and private business, in
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their relationship to the facts of the particular case,
)
and in particular the Court may presume that:-
16
xxxxxxxxxxxxx
(2
0
(c) The common course of business has been followed
in particular cases.
168 (1) When any judicial or official act is shown to
have been done in a manner substantially regular, it
is presumed that formal requisites for its validity
were complied with.
(2) When it is shown that a person acted in a public
capacity, it is presumed that he had been duly
appointed and
15
was entitled so to act."
At page 164 to 165 of the printed record appear the names
and addresses of the persons the appellants consider to be
affected by the outcome of the appeal to wit:
“5. PERSONS DIRECTLY AFFECTED BY THE
APPEAL:
(A) APPELLANTS:
HARUNA SHETTIMA
A)
HAJIYA LADI SHETTIMA
C
HADIZA SHETTIMA
8(
AISHATU SHETTIMA
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A.S. Hassan & Co.
17
All C/O Their Counsel:
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32, Yakubun Bauchi Road, Bauchi.
(2
01
6)
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(B) RESPONDENT:
MRS. HAJARATU SHETTIMA
C/O Her Counsel:
Marcel Oru & Co.
Suite 12, Royas Shopping Complex,
Damboa Road, Maiduguri.”
They are the persons whose names appeared in the Writ of
Summons and the Statement of Claim. As none of the
appellants filed Statements of Defence, there is nothing on
record to show any other party to be affected in this appeal
whose name has been omitted in the Notice of Appeal.
Accordingly, there is no merit in the preliminary objection
which I hereby dismiss with N50,000.00 to the appellants. I
shall now consider this appeal on the merit.
The parties and their respective Counsel should deem I
have read
16
the briefs and considered the record of proceedings, the
authorities and Exhibits, etc, before arriving at my
conclusion. See Order 18, Rule 3 (3) and (4) and 4 (1)
and (2) of the Court of Appeal Rules, 2011. I need
not reproduce verbatim arguments or reasons upon
which Counsel have founded their respective arguments
that the appeal should be allowed or dismissed.
ISSUES (A) AND (B):
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01
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A)
The question whether there was proper service of the
processes should have been canvassed in the Court
below supported by oral and documentary Exhibits.
Where the issue was controversial, parties could have
given evidence and be subjected to cross-examination.
See Falobi vs. Falobi (1976) 1 N.M.L.R. 169; Eboh
vs. Oki (1974) 1 SC 179 at 189-190 and Falola vs.
UBN Plc (2005) 2 SCNJ 209. Issues not raised in the
Court below can only be raised in this Court with leave
first had or obtained by the party raising it.
(2
0
16
)
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​ S ervice of processes before an action is commenced
goes to the issue of jurisdiction of the Court to entertain
the claim. Where there is dispute as to whether parties
have been served within or outside jurisdiction, the
affidavit of service and the processes
17
served have to be produced and tendered in the Court of
trial as evidence of service. See S.G.B. (Nig.) Ltd. vs.
Adewunmi (2003) FWLR (Pt.158) 1181 at 1192
paragraphs "€œA"€-"€œD."€ Failure to effect service of
processes before the commencement of hearing to the
delivery judgment constitutes an infringement of the right
of fair hearing. See Lawrence-Emuakpor vs. Ukaube
A)
(1975) 12 SC 41 at 47; Okoye vs. C.P.M.B. Ltd. (2008)
(C
15 NWLR (Pt.1110) 335 at 351 and Alhaji J.A. Odutola
78
vs. Inspector Kayode (1994) 2 NWLR (Pt. 324) 1 at
01
page 15. The issue of lack of service of processes being a
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question of fact requires oral and documentary evidence.
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There are however occasions when lack of jurisdiction
6)
cannot be successfully argued in the trial Court or in the
01
Court of Appeal without evidence being tendered in proof
(2
of the assertion. See Dweye vs. Iyomahan (1983) 8 SC
76; Chikwe vs.Obiora (1960) 5 FSC 258; Adetiye vs.
Amodu (1969) 1 NMLR 62 and Aburime vs. The
Secretary, Assemblies of God Mission (1952) 14
WACA 185. The appellants have not adduced oral or
documentary evidence to disparage the findings of the
learned trial Judge that they were
18
served outside jurisdiction but failed or neglected to defend
the suit instituted by the respondent against them.
There is no substance in issues (a) and (b) which I hereby
resolve against the appellants.
A)
I shall consider issue (c) and (d) together.
C
The 2nd appellant is Hajiya Ladi Shettima. She was sued in
8(
the Court below as the 2nd defendant. The learned trial
17
Judge held at page 127 lines 13-14 of the printed record
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that she entered a memorandum of appearance without
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filing a statement of defence. The information on every writ
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of summons to be served within or outside the jurisdiction
of a Court usually demands the entry of appearance within
01
6)
the stipulated time frame followed by a warning that failure
(2
to do so may enable the plaintiff to proceed with hearing
and obtain judgment from that Court. It is not enough to
enter a memorandum of appearance without a Statement of
Defence. Without a Statement of Defence being entered by
a defendant the claims of the plaintiff remains
unchallenged. No one sets out to prove at the hearing what
has not been challenged. See Olale vs. Ekwelendu (1989)
7 SCNJ (Pt.2) 62 at 102. In the absence
19
of a Statement of Defence, the claims of the respondent
were granted by the learned trial Judge. That is the law. In
refusing the application for adjournment made by one
Hamza, Esq. on behalf of the 2nd appellant the learned trial
Judge reasoned at page 121 lines 1-17 and at lines 20-26 of
the printed record as follows:
A)
"...I agree, Courts do not grant an adjourned any and
(C
any way. There must be good reasons for an
01
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adjournment to be granted. It must be granted if it
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will further there cause of notice. In this application,
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memo of appearance filed in March, 2009. Since then
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nothing was done by the 2nd defendant. It is now that
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the 2nd defendant is trying to taken action in the
16
)
matter. Finally, she was not serves in the matter.
(2
0
Adjournment cannot be granted to a party to do what
ought to be done before now. A matter filed early in
2009 is yet to be heard. It is now middle of October,
2010. There it's been over 12 months since the matter
was filed and 2nd defendant entered appearance. She
had sufficient time to take action in the matter
nothing been done. Surely, it cannot be in the interest
of justice to grant an adjournment. Any adjournment
will
20
not be in interest of justice. It will be contrary to the
saying "the justice delayed is justice denied". For the
foregoing resorts, an adjournment cannot and is
hereby not granted. Matter to proceed to hearing as
slates…
Hamza -In view of the refusing an adjournment, I
apply to withdraw from the matter. The 2nd
A)
defendant referred all the documents from me and
(C
gave to Hassan, Esq. I am therefore not in position to
78
proceed. I have nothing instruction from her to
01
proceed with matter.
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Oru -€“ No objection.
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Court - Application to withdraw granted.
6)
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Oru - I am to proceed."
01
The decision to grant or refuse an application for an
(2
adjournment involves the exercise of a judicial discretion
thrust upon the learned trial Judge in whose Court the
proceedings are conducted. The learned trial Judge gave
cogent reasons for refusing the application by Hamza, Esq.
for the adjournment. First it is said the 2nd appellant was
in London hence, no statement of defence could be filed by
Hamza, Esq. on behalf of the 2nd appellant after Counsel
had entered a memorandum of appearance on 25th March,
2009. As at 19th October,
21
2010, Hamza, Esq. had not deemed fit to file processes
intimating the Court that he had been debriefed by the 2nd
appellant. Neither did Hassan, Esq. file processes to show
that his services had been engaged by the 2nd appellant to
take over and proceed with her defence. The 2nd appellant
did not also file documents showing she had debriefed
Hamza, Esq. and engaged the services of Hassan, Esq.
A)
Apart from the ispi digit of Hamza, Esq., there was no iota
(C
of evidence that the 2nd appellant had terminated her
78
contractual relationship with Counsel and engaged the
01
services of Hassan, Esq. These are facts that ought to have
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the Court of Appeal.
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been proved before the Court of trial but certainly not in
6)
Counsel are reminded that the relationship between a
01
Legal Practitioner and a client is contractual. See Edozien
(2
vs. Edozien (1993) 1 SCNJ 166 at 189; Mosheshe vs.
N.S.P. Ltd. (1987) 2 NWLR (Pt. 55) 110 at 119 and
Adewunmi vs. Plastex Nig. Ltd. (1986) 6 SC 214 at
223. Hamza, Esq. entered the memorandum of appearance
on 25th March, 2009. Yet, by 19th October, 2010, no
statement of defence had been filed by the learned Counsel
on behalf of the 2nd appellant
22
thereby causing delay in ensuring speedy trial of the
dispute. This contravened Rule 15 (3) (b) of the Rules of
Professional Conduct for Legal Practitioners, 2007
which reads as follows:
"€œ(3) In his representation of his client, a lawyer
shall not:xxxxxxxxxxxx
A)
(b) ...delay a trial... when he knows or ought
(C
reasonably to know that such action would serve
01
78
merely to harass or maliciously injure another."
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The preparation and filing of processes such as pleadings in
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the Court is not the responsibility of the client once a
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Counsel is briefed and filed a memorandum of defence. See
6)
Long-John vs. Blakk (1998) 5 SC 68. There is the
01
presumption that Counsel had adequate instructions or was
(2
briefed by the client before Counsel proceeded to enter
memorandum of appearance. Therefore, the filing or nonfiling of pleadings for nearly over a year or so thereby
causing undue delay in the speedy trial of the suit should
be attributable to Counsel but not the client. If the fault or
blame is being attributed to the client, there should be
evidence from that client admitting the default or neglect
to the satisfaction of the
23
01
78
(C
A)
Court.
The Supreme Court has held that it is not right to visit
the sins of Counsel on the litigant. See Ibodo vs.
Enarofia (1980) 5-7SC 42; Akinyede vs. The
Appraiser (1971) 1 All NLR 162; Doherty vs.
Doherty (1964) 1 All NLR 299; Ahmadu vs. Salau
(197 4) 1 All NLR (Pt. 2) 318 and Bowaye vs.
Adediwura (1976) 6 SC 143. But the above principles
are limited to procedural irregularities or blunders
committed by Counsel in the manner of filing processes
and conducting proceedings. See Akanbi vs. Alao &
Anor. (1989) All NLR 424 at 440 and Bamaiyi vs.
The State (2003) 7 NWLR (Pt.842) 47 at 64
paragraphs "€œB"€-"€œC"€.
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The pertinent question in this appeal is, who is to be
blamed for not filing a statement of defence on behalf of
the 2nd appellant? Is it Hamza, Esq.; Hassan, Esq. or the
2nd appellant?
(2
01
6)
According to Hamza, Esq. upon entry of appearance on
25th March, 2009 he was debriefed by the 2nd appellant
in preference to Hassan, Esq. In Okesuji vs. Lawal
(1991) 2 SCNJ 1 the question identified by the
Supreme Court for determination was couched in the
lead judgment of Akpata, JSC at page 1 as follows:
24
"1. Whether the admission of fact by Counsel during
proceedings in the trial Court can be retracted by
another Counsel at the appeal stage, particularly
where he has failed to show that the admission was a
mistake.
2. What is the effect of failure to serve the 2nd
defendant and/or 5th defendant with the Writ of
A)
Summons and the effect of such failure, if there was
78
(C
indeed a failure?"
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01
His Lordship answered the poser at pages 8-11 of the
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judgment as follows:
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“It is to be noted that learned Counsel for the
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appellant has not positively stated that the 5th
6)
defendant was not served with the Writ of Summons
01
or that no Writ of Summons was directed to her or
(2
that no one was indorsed as having been served on
her. The complaint is that “the Writ of Summons on
record (at page 2)” was not indorsed or directed to
the appellant. I shall return to this aspect of his
submission later in the judgment.
Firstly, I wish to point out that the issue of nonservice of the Writ of Summons on the 2nd defendant
and the 5th defendant or that relevant endorsements
were not made on the writ was no raised either in the
trial Court or in the Court of
25
Appeal. There is however nothing precluding the
appellant from raising in this Court any question
which touches on the jurisdiction of the trial Court to
entertain the action or that the proceedings are a
nullity because of a fundamental defect.
It is not in dispute that the 2nd defendant was not
present in Court throughout the proceedings and that
A)
he filed no statement of defence. Learned Counsel for
(C
the appellant has relied on the record of appeal in his
78
effort to establish that the 2nd defendant was not
01
served with the Writ of Summons.
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In the trial Court, going by the record of appeal, and
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as pin-pointed by learned Counsel for the respondent,
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the plaintiff/respondent filed a motion on notice in
6)
the High Court dated 10th August, 1979 for leave to
01
prosecute the case in a representative capacity. When
(2
the motion came on for hearing on 22nd October,
1979 the Court noted at page 30 lines 12 to 13 of the
record thus:
“I observe that there is no report of service on the 1st
to 3rd defendants.”
This observation apparently relates to the service of
the motion on notice. Mr. Odofalu appeared for the
4th and 5th defendants.
26
Counsel for the plaintiff then requested for
adjournment. At pages 31 to 32 is the affidavit of
service of the motion on notice on each of the
defendants, including the 2nd defendant. It was
sworn and filed on 27th November, 1979. On 9th
March, 1981, Mr. Oriade for the plaintiff informed the
A)
Court that the 1st, 2nd and 3rd defendants had
(C
expressed their willingness not to defend “even
78
though we have been serving them all processes in
01
this case”. (See page 50 lines 8 to 12 of the record of
-4
appeal). Mr. Odufalu for the 4th and 5th defendants
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then said:
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“I am not sure if the 1st, 2nd and 3rd defendants have
been served the summons for direction:
01
6)
However, nothing was said relating to the service of
(2
the Writ of Summons. On 16th June, 1981, Mr.
Odufalu, in the presence of the 5th defendant,
observed thus: “As the Court would see the 2nd
defendant was served with the Writ of Summons but
he would never put in an appearance.” (See page 51
lines 24 to 26).
This was an obvious admission by learned Counsel for
the 5th defendant/appellant in the presence of the 5th
defendant/appellant who is claiming in this Court that
the 2nd
27
defendant was not served with the Writ of Summons.
The expression “as the Court would see” is very
significant. It suggests that there was something
before the Court from which it “would see” that
the 2nd defendant has been served.
The appellant can therefore not be heard to complain
A)
that the 2nd defendant and herself were not served
(C
with the Writ of Summons. Although the appellant is
78
represented by a different Counsel in this Court in the
01
person of Mr. Fashanu, her Counsel here is precluded
-4
from shifting grounds on the issue. Embarrassing as
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it was to him, Mr. Fashanu agreed that he was bound
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by the observation of Counsel for the former
appellant. He however, tried to wriggle out of his
01
6)
dilemma by saying it could have been a mistake of
(2
Counsel.
A Counsel can, while functioning as such, make
admissions of facts which could be ‘binding on his
client, particularly where such admissions was made
for the purpose of dispensing with proof at the trial
and when the client failed to retract the admission
before judgment. There is no doubt that in
considering the effect of an admission the Court
would take into
28
account the circumstances under which it was made
and the weight to be attached to it.
This is the type of admission by Counsel which in a
civil case is prima facie evidence against his client.
There is also a presumption of regularity in the
learned trial Judge proceedings to trial in the absence
A)
of the 2nd defendant when the 2nd defendant himself
(C
has not complained that he was not served. In the
78
case of Alhaji Umaru Launi vs. Exeadua (1983) 6 SC
01
370 relied on by learned Counsel, the Court of Appeal
-4
dismissed the appeal when it took the view that both
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parties, though served, had elected not to come to
LP
Court. The appellant appealed to this Court
complaining that he was not served. This Court held
01
6)
that the onus was on the Court of Appeal to satisfy
(2
itself that there has in fact been service on the parties
and not what was assumed in the case. It was held
that the Court of Appeal acted clearly without
jurisdiction.
The case under reference is in no way similar to the
case in hand, and the principle enunciated is not
applicable to the instant case. Firstly, the 2nd
defendant has not complained that he was not served.
Secondly, none of the parties in
29
that case made any admission which can be held
against him.
If there was any lingering doubt that the 2nd
defendant was probably not served, it was put to rest
by the observation of learned Counsel for the
respondent in his brief of argument to which the
appellant filed no answer. Chief Oriade at page 5,
A)
paragraph 3.07 and 3.08 submitted thus:
(C
“3.07 It is remarkable that out of the five
78
defendants who appealed against the judgment of the
01
learned trial Court. The 5th defendant/appellant had,
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at the time of settlement of the record of appeal in
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the High Court of Lagos State in Suit No.
LP
LD/809/1977 excluded from the record of appeal
6)
many documents such as the Bailiff’s affidavit of
01
service of the Writ of Summons on the 2nd and 5th
(2
defendants.
3.08 The plaintiff/respondent submits, with all due
respect
to
my
Lords,
that
the
fifth
defendant/appellant, who had admitted and confirmed
through her Counsel, H.A. Odufalu, Esq. at page 51
lines 24 to 27 of the record of appeal that the 2nd
defendant has been served with the Writ of Summons
is estopped in law from complaining that the Writ of
Summons was not served or that there was no
30
proof of service of the Writ of Summons on the 2nd
defendant.”
The allegation that the appellant excluded from the
record of appeal the bailiff’s affidavit of services of
the Writ of Summons on her and the 2nd defendant
has not been refuted by her. No reply brief was filed
in answer to this allegation and learned Counsel for
A)
the appellant made no effort to refute it in his oral
C
argument.
8(
I however doubt whether Counsel would have been
17
allowed to do so in his oral submission without filing
-4
0
a reply brief as this Court has held that it refused to
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hear oral argument from Counsel in respect of points
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raised in respondent’s brief which no reply brief is
filed. (See Ogbechi vs. Onochie (1988) 1 NWLR
6)
(Pt.70) at page 402). In the light of the above, I find
(2
01
no substance in grounds 1, 2 and 3.”
​Hamza, Esq. admitted that he entered appearance on 25th
March, 2009 but was subsequently debriefed by the 2nd
appellant. Hamza, Esq. committed no sins. As there is no
evidence that Hassan, Esq. was briefed by the 2nd
appellant to continue with the proceedings, Counsel too did
not commit any sins. The 2nd appellant committed sins by
not filing
31
a statement of defence. She rather chose to stay or live in
London without any attempt after debriefing Hamza, Esq.
to file a statement of defence or brief another Counsel for
that purpose.
The fault is not of any Counsel but the 2nd appellant. See
Ajayi vs. Omorogbe (1993) 6 NWLR (Pt.301) 512 at
A)
page 528.
(C
Rule 14 (1)-(5) of the Rules of Professional Conduct
78
for Legal Practitioners, 2007 further provides thus:
01
“14 (1) It is the duty of a lawyer to devote his
-4
attention, energy and expertise to the service of his
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client and, subject to any rule of law, to act in a
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manner consistent with the best interest of the client.
(2) Without prejudice to the generality of paragraph
6)
(1) of this rule, a lawyer shall:-
01
(a) Consult with his client in all questions of doubt
(2
which do not fall within his discretion;
(b) Keep the client informed of the progress and any
important development in the cause or matter as may
be reasonably necessary;
(c) Warn his client against any particular risk which
is likely to occur in the course of the matter;
(d) Respond as promptly as reasonably possible to
request for information by
32
the client; and
(e) Where he considers the client'€™s claim or defence
to be hopeless, inform him accordingly.
(3) When representing a client, lawyer may, where
permissible, exercise his independent professional
judgment to waive or fail to assert a right or position
of his client.
A)
(4) It is the duty of a lawyer employed in respect of a
C
Court case to be personally present or be properly
8(
represented throughout the proceedings in Court.
17
(5) Negligence in handling of a client€'s affairs may
-4
0
be of such a nature as to amount to professional
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misconduct."€
Hamza, Esq. had been debriefed soon after entering
01
6)
appearance on behalf of the 2nd appellant on 25th March,
(2
2009 hence had no existing contractual relation with his
client to confer him with the locus standi to appear in Court
henceforth to make any application on her behalf. The
learned trial Judge should have prevailed on Hamza, Esq.
not to appear and make any application for an adjournment
for a client he was no longer her legal practitioner. There is
no substance in issues (c) and (d). I resolve issues (c) and
(d) against the appellants.
33
Accordingly, the appeal lacks merit and is dismissed. I
affirm the judgment of the learned trial Judge – I.S.
Bdliya, J., (as he then was). N50,000.00 cost is to be paid
by the appellants to the respondent.
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01
78
(C
A)
ADZIRA GANA MSHELIA, J.C.A.: I have had the
advantage of reading in draft the lead judgment just
delivered by my learned brother, JOSEPH TINE TUR,
JCA. He has fully and comprehensively dealt with the
issues raised for determination in this appeal. I agree with
his reasoning and conclusion. I would also dismiss the
appeal and abide by the consequential orders made in the
leading judgment, cost inclusive.
(2
01
6)
ADAMU JAURO, J.C.A.: I have had the opportunity of
reading in advance the leading judgment just delivered by
my learned brother, JOSEPH TINE TUR, JCA. I am in
complete agreement with the reasoning and conclusion
reached, that the appeal is lacking in merit and should be
dismissed. I adopt the said judgment as mine and hereby
dismiss the appeal.
I subscribe to orders made in the lead judgment, including
that on costs.
34