Delta State Government V. Dr. Effiong Johnson Okon & Anor. (2001)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

At the Lagos High Court in suit No.LD/2356/99, the respondent was the plaintiff. He claimed from the appellant for the sum of N3,410,000.00 being professional charges for the medical services rendered to the defendant in the treatment of its employees between February, 1995 and September, 1997. The writ of summons issued by the respondent was specially indorsed with and accompanied by a statement of claim pursuant to Order 10 rule 3 of the Lagos State High Court Civil Procedure Rules.

The writ of summons and statement of claim were served on the appellant. Later the respondent brought an application for final judgment in the said sum of N3,410,000.00 in default of appearance and statement of defence. A bailiff of the High Court of Justice, Asaba, Delta State who claimed to have effected service of the application and affidavit deposed to an affidavit of service to the effect that the appellant was served with the process on 11/10/99. On 25/10/99, the application for summary judgment came before Rhodes-Vivour J. The respondent’s counsel moved the motion and judgment was entered against the appellant in these words:

“Accordingly judgment is entered for the plaintiff against the defendant in the sum of N3,410,000.00 plus interest at 20% per annum from 4/2/93 until judgment and at 4% until the judgment debt is fully paid.”

However on 5/11/99, the appellant brought an application praying for the following:

“1. An order setting aside its judgment dated 25th October, 1999.

2. An order setting aside the writ of fifa dated 29th October, 1999.
3. An order setting aside the attachment of the properties of the defendant/applicant on 3rd November, 1999.
4. And order setting down the case for it to be heard on its merit.”

The grounds for bringing the application were stated on the motion paper thus:

“1. That apart from the writ of summons and statement of claim served on the Attorney-General of Delta State in Asaba on 31/8/99 no other process was served in this suit.

2. That plaintiff/respondents did not comply with the provisions of Order V rule 5 of the Sheriff and Civil Process Act Cap. 407 Laws of the Federal Republic of Nigeria, 1990.
3. That the defendants/applicants have a good defence to the action.”

On 9/11/99, the respondents filed a notice of preliminary objection in which they asked:

“That having regards to the tenor and intendment of Order 60 rule 4 of the High Court of Lagos (Civil Procedure) Rules, 1994, section 287(3) of 1999 Constitution is fundamentally defective, incompetent, incurably bad, a gross abuse of judicial process, unpardonable waste of valuable judicial time and hence the Honourable Court lacks jurisdiction to entertain same.”

The grounds relied upon for bringing the notice of preliminary objection were stated to be these:

(A) With reference to reliefs No.1 and 4 on the judgment debtor’s motion paper, the Honourable Court can not set aside or review its judgment entered on 25th October, 1999 since it was entered under undefended list, hence judgment entered on the merit. The court cannot sit on appeal against its own judgment. It is only a court with appellate jurisdiction that can sit in judgment or review the said decision. The defendant failed to file a notice in writing of its intention to defend the suit and affidavit disclosing a defence on the merit. The Honourable Court lacks jurisdiction to sit as an appellate court over its own decision.

We refer your Lordship to the following cases:

1. U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt .103) P.244
2. Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt.l23) 523 P. 529, 531, 532, 534-537.
3. Agueze v. P.A.B. Ltd. (1992) 4 NWLR (Pt.233) 76 P. 85-89.
4. J. Bearthle & Co. Ltd. v. Lima Services Ltd. (1992) 1 NWLR (Pt.217) P.273.
5. Mark v. Eke (1997) 11NWLR (Pt.529) 501 P. 524.
6. F.B.N Plc v. Obande & Sons (Nig.) Ltd. (1998) 2 NWLR (Pt.538) 410 P.418, 423 para F-G.
7. Wanko v. U.B.N Ltd (1991) 9 NWLR (Pt.213) P.112.
8. Ahmed v. Trade Bank (Nig.) Plc. (1997) 10 NWLR (Pt.524) 290 P.297.
9. N.B.C.I. v. Abiokwe (1997) 11 NWLR (Pt.527) 25 P.34.
10. Edem v. Cannon Ball Ltd. (1998) 6 NWLR (Pt.553) 298 P.314.

(B) With further reference to reliefs No.2 & 3 on the defendant/judgment debtor’s application, the position of the law has changed. Having regards to section 287(3) of 1999 Constitution consent of Attorney-General to enforce or execute judgment against either government property or property under custody and control of public officers in their official capacities.

In fact, section 287(3) by virtue of being a constitutional provision has nullified the combined provisions of Order V rule 5 of Sheriff and Civil Process Rules 1990 Laws of the Federation and Decree 107 of 1993 that amended section 251 of 1979 Constitution in respect of execution of court’s judgment on government property. It is trite that any law or statutory provision which is in conflict with the provision of the Constitution, the constitutional provision will render void the statutory provision to the extent of its inconsistency.

That being the case, it is submitted that the Honourable Court has become functus officio in respect of the reliefs sought by the defendant/judgment debtor and on the authority of Supreme Court decision in Bakare v. Apena (1986) 4 NWLR (Pt.33) 1 P. 22 the court lacks jurisdiction to entertain the application, hence the application being a nullity ought to be dismissed.

On 15/11/99, the lower court heard arguments on the notice of preliminary objection. On 9/12/99, the lower court in its ruling dismissed the application by the appellant. Dissatisfied with the dismissal of its application, the appellant has brought this appeal on four grounds of appeal. The respondents filed a respondent’s notice. In the appellant’s brief filed the issues for determination were formulated thus:

“3.1 Whether a judgment purported to be given under the undefended list procedure can be valid in the face of total non-compliance with the procedure expressly laid down for its application and operation.

3.2 Whether the nature, procedure, form and contents of respondent’s claim and application in the lower court and the judgment for them on 25/10/99 do not constitute an application for and judgment in default of appearance.

3.3 Whether the learned trial Judge was not compelled by law to call in aid credible oral evidence to resolve the conflict in the two affidavits dated 11/10/99 and 10/11/99 respectively (the one affirming service of the respondents motion for judgment and the other denying same) purportedly deposed to by the bailiff Sunday Ijeh of the Delta State High Court and whether in declaring a preference for one rather than the other of the two conflicting affidavits the learned trial Judge acted judicially and judiciously, particularly in view of the fact that the respondents did not challenge the appellant’s denial of the service of the motion for judgment contained in appellant’s affidavit dated 11/11/99 by way of a counter-affidavit.”

The respondents’ issues as put across in their brief are these:

“Whether it is automatic to set aside judgment obtained under Order 10 rule 3 of the High Court of Lagos State Civil Procedures 1994 as a matter of course or on the platter of gold even where the defendant has admitted the plaintiff’s claim and the statement of defence filed discloses no triable issue. Moreso, the respondent’s notice has been filed that the judgment of the trial court be affirmed under Order 11 rule 1 of the High Court of Lagos State Rules 1994.

Assuming the appellant’s first issue for determination formulated from incompetent ground of appeal is a competent issue, whether equitable doctrine of waiver and acquiescence has not caught up with the defendant having been served a motion for judgment under Order 60 rule 1 & 4 of the High Court of Lagos Rules but failed to challenge the irregularity timeously or before judgment.

Moreso, having regards to Order 5 rule 1, of the same Rules, non-compliance with rules of court now does not nullify proceedings including judgment. Assuming the appellant’s third issue for determination distilled from ‘ground C’ of appeal filed on 9/12/99 is a competent issue and the affidavit purportedly deposed to by Sunday Ijeh (senior bailiff of the High Court of Asaba) on 10/11/99 is admissible in law in any event, whether the trial court was obliged to call oral evidence to resolve self-inflicted contradiction in the said affidavit.”

I shall consider the issues for determination as raised by the appellant seriatim. Under issue I, the appellant contends that the lower court was wrong to have taken the judgment delivered on 25/10/99 as a judgment under the undefended list which could only be set aside by an appellate court. The appellant further contends that as the judgment was given pursuant to Order 10 rule 3 of the High Court of Lagos State Civil Procedure Rules, it was a default judgment which could be set aside for good reasons.

The lower court in its ruling at page 139 of the record of proceedings in stating that it has no jurisdiction to set aside the judgment given on 25/10/99 reasoned thus:

“The judgment entered by this court on 25/10/99 was entered under the undefended list. Order 60 of the High Court of Lagos State Civil Procedure Rules, 1994. It is settled law that a judgment obtained under the undefended list is a final judgment on the merits. It can only be set aside on appeal. Accordingly this prayer wherein the judgment debtor applicant seeks to set aside judgment of 25/10/99 is not competent. The trial court has no such jurisdiction. So any lapse in procedure before judgment was entered can only be addressed at the Court of Appeal. See Nig. Bank for Commerce and Industries v. Ika Ashakpa Abiokwe & 2 Ors (1997) 11 NWLR (pt.527) 25; J. Baerthle & Co. Ltd. v. Lima Services Ltd. (1992) 1 NWLR (Pt.217) 273. In the light of the above a trial court has no jurisdiction to set aside a judgment entered under the undefended list.” Was the lower court right in its reasoning in the above passage? I think not.

Order 60 of the Lagos State (Civil Procedure) Rules, 1994 provides:

“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘Undefended List’ and mark the writ of summons accordingly, and enter thereon date for hearing suitable to the circumstance of the particular case.

2. There shall be delivered by the plaintiff to the Registrar upon the issue of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought and the Registrar shall annex one such copy of the writ of summons for service.”

The language of Order 60 above is clear and not difficult to understand. A plaintiff who wishes to proceed under the undefended list procedure must approach the court with an application supported by an affidavit setting forth the grounds upon which the claim is based and stating that in its belief the defendant has no defence. It is only if the court is satisfied that it is a case in which to allow the undefended list procedure i.e that there is no defence to the claim, that the suit is then entered for hearing on the undefended list.

In U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 at 249, the Supreme Court per Nnaemeka-Agu J.S.C. discussed the procedure thus:

“Under the undefended list, an application is made to the court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated demand. The application is supported by an affidavit which is filed along with the writ and which sets out the grounds of the claim and states that in the deponent’s belief, the defendant has no defence to the action. Once the court is satisfied that there are good grounds for believing that there is no defence thereto, it shall enter the suit for hearing under the undefended list and it will be marked accordingly. A copy of the affidavit is served with each copy of the writ.”

See also Ahmed v. Trade Bank (Nig.) Plc (1997) 10 NWLR (Pt.524) 290; Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc (2000) 5 NWLR (pt.658) 568.

In the instant case, the procedure adopted by the respondent does not remotely suggest that they were commencing a suit under Order 60 above. No application with an affidavit was brought before the lower court. The respondents in any case filed a specially indorsed writ of summons accompanied by a statement of claim under Order 3 rule 5 of Lagos State Civil Procedure Rules. When they brought the application for judgment on 2/10/99 they expressed it to have been brought pursuant to Order 10 rule 3, Order 11 rule 1, Order 60 rules 1,4, Order 40 rule 4 of the High Court of Lagos State Civil Procedure Rules. But notwithstanding that the respondents expressed that they were seeking the judgment of the lower court under Order 60 of the High Court of Lagos State Civil Procedure Rules, the procedure they adopted was certainly incompatible with that laid down under the said Order 60.

It is apparent that the respondents had approached the lower court pursuant to Order 10 of the Lagos State High Court Rules. Order 10 rule 1 of the Lagos State High Court Rules provides:

“Where judgment is entered pursuant to any of the preceding rules of this Order, it shall be lawful for the court or a Judge in chambers to set aside or every such judgment upon such terms as may be just.”

And Order 25 rule 15 of the same Rules provides:

“Any judgment by default, whether under this Order or under any Order of these Rules, may be set aside by the court or a Judge in chambers, upon such terms as to costs or otherwise as such court or Judge in chambers may think fit, and where an action has been set down on motion for judgment under rule 11 of this Order, such setting down may be dealt with by the court or a Judge in chambers in the same way as if judgment by default had been signed when the case was set down.”

Under Order 25 rule 15 and Order 10 rule 11 of the Lagos State High Court Rules, the lower court clearly had the necessary jurisdiction to set aside the default judgment delivered on 25/10/99 provided there were good reasons to do so.

The next question is – were there good reasons for the lower court to set aside the judgment? Before I consider an answer to this question it is important that I stress that whether the respondents had come under the undefended list or under the default judgment procedure, there was in either case jurisdiction in the lower court to set aside the judgment given if it was shown that the application for judgment was not served on the defendant.

Failure to effect service of court processes on a party where it is necessary to do so has always been regarded as a fundamental flaw which goes to the root of the adjudication. It is a vice which cannot be overlooked. An order or judgment made in that setting is a nullity and must be set aside: see Craig v. Kanren (1943) 1 All ER 108 at 113, White v Weston (1968) 2 All ER 842 at 845; Skenconsult (Nig.) Ltd. & Anor v. Godwin Sekendy Ukey (1981) 1 SC 6 at 27.

In the affidavit in support of the application to set aside the judgment of 25/10/99, the appellant deposed in paragraph 17 to 20 thus:

“17. That service is by the Rules of court personal

18. That the motion for judgment was never served on or received by the office of the Honourable Attorney-General.
19. That the purported service by one Sunday Ijeh was false.
20. That all enquiries in the office of the Attorney-General revealed that nobody signed as having received the motion for judgment purported to have been served on the Attorney-General of Delta State.”

When the respondents’ application for default judgment was to be heard, the lower court had relied on an affidavit of service said to have been deposed to by Sunday Ijeh, a bailiff of the Delta State Judiciary. The same bailiff however on 10/11/99 deposed in paragraph 7 of an affidavit which he filed thus:

“7. That no motion for judgment was ever served by me on the defendant or the Ministry of Justice, Asaba.”

The implication of the deposition by the bailiff is that the appellant was not served the process of court leading to the judgment given on 25/10/99. Why had the bailiff suddenly turned court? Was he lying? The trial Judge in his ruling treated the matter this way.

“It is clear to me that the bailiff’s later affidavit denying service was deposed to solely for this application.”

This application was filed on 5/11/99 while the affidavit denying service was deposed to on 10/11/99 five days after this application was filed.

An affidavit could be rejected if it is obviously frivolous and where allegations therein are not supported by exhibits or contrary to reason.

In this application deposition in affidavits in support that the motion for judgment was not served on the defendant is (sic) hereby rejected in the light of records of court (page 94) of the case file which makes it abundantly clear that the said process was indeed served on the applicant herein on 11/10/99 by Sunday Ijeh, a senior bailiff of High Court Asaba, Delta State.

I am in the circumstances satisfied that before this court entered judgment in this suit on 25/10/99 the motion for judgment was already served on the defendant on 11/10/99 and there is acknowledgment of service by someone in Attorney-General’s Office Asaba.”

With respect to the trial Judge, I think he was not right in his approach to the issue of service on the appellant. Until the trial Judge had caused an investigation to be carried out into the matter he could not categorically conclude that the later affidavit by Sunday Ijeh was frivolous or that the application was served on 11/10/99. It was possible that the affidavit of service previously filed was forged. The later affidavit could also be forged. Clearly the former and later affidavits were in conflict with each other. The matter therefore called for further investigation. It has always been the practice that where the affidavit evidence before a court is in conflict, the matter ought to be resolved by calling for oral evidence: See Falobi v. Falobi (1976) 9-10 SC 1; Olulbukun & Anor v. Olu Ibukun (1974) 2 SC 41 at 48. In the instant case, I think the circumstances certainly necessitated that the bailiff be put into the witness box on oath to explain the discrepancies in the two affidavits. Without first doing this, the trial Judge could not be right to conclude that the appellant was served.

The respondent as I observed earlier filed a respondent’s notice. However all the issues therein are not matters which can be raised under a respondent’s notice. In a respondent’s notice, a respondent acknowledges that the lower court came to the right conclusion but for the wrong reason; and therefore seeks an affirmation of the judgment or decision of the lower court on grounds other than those relied upon by the lower court.

The respondent in his notice is only raising fresh matters which had not come up for consideration before the lower court. The respondent proceeded as if filing grounds of appeal instead of concisely stating in a few words why the decision of the lower court could be sustained on other ground. In their ground 1, the respondents stated that the defendant’s statement of defence disclosed no triable issue. That could not be a possible answer to the lower court’s mistaken conclusion that the respondents sought and obtained judgment under the undefended list procedure; or the failure of the trial Judge to investigate how the same bailiff came to swear to two conflicting affidavits.

Under ground 2, the respondents contend that they obtained judgment under both Order 10 rule 3 and Order 60 of the High Court Rules. But here again, a person obtaining judgment under either rule of court must still show that the defendant was served the process leading to the judgment.

Under ground 3, the respondents contend that the non-endorsement of the writ of summons as provided under Order 60 was a mere irregularity. The answer here is that there was a dispute as to service of the motion for judgment on the respondent.

Now looking at the notice of preliminary objection filed by the respondents before the lower court, it is manifest that the issues raised therein did not constitute valid reasons why the lower court should not consider the application to set aside the judgment of 25/10/99 which the appellant brought. At the highest, they were issues which the respondents might have developed into arguments in opposition to the arguments by appellant’s counsel in the grant of the application. The notice of objection should have been overruled.

The lower court in its ruling stated that the notice of preliminary objection and the application to set aside the judgment of 25/10/99 were argued together. But the court notes would appear to suggest the contrary. The court notes for 15/11/99 show that the notice of preliminary objection was argued. I must observe however that the lower court in its ruling freely referred to the affidavit evidence in support of the application to set aside the judgment in the same manner it would if the motion had been argued.

On the statement of the trial Judge that both the notice of preliminary objection and the application to set aside the judgment of 25/10/99 were heard together, the obvious inference to draw is that the depositions of the appellant in paragraphs 17, 18, 19 and 20 of the affidavit in support of the application were not challenged or controverted. The depositions were to the effect that the appellant was not served with the motion for judgment and the affidavit in support.

In the final conclusion, this appeal succeeds. The ruling of the lower court given on 9/12/99 is set aside. In substitution for it, I make an order overruling the preliminary objection and that the application by the appellant that the judgment given on 25/10/99 be set aside should be heard de novo by another Judge of the Lagos State High Court. The appellant is entitled to costs which I fix at N3,000.00.

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Other Citations: (2001)LCN/0945(CA)