Leader Olumba Olumba Obu (Roland Obu) V. Etinyin Ededem Archibong (1) (For Himself And On Behalf Of The Family Bassey Archibong Edem) (2009)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
Endorsed on the Writ of Summons Issued at the Registry of the High Court of Cross River State, Calabar Judicial Division on 27/1/04 are the Plaintiff’s claims against the Defendant:
“1. A declaration that the failure of the defendant to honour or keep a term of the agreement as contained in the Agreement entered into between the plaintiff and the defendant (as to the payment of Annual Royalty to the Plaintiff) voids the said contract.
- Perpetual Injunction restraining the defendant, his agent servants and privies from using the said land inconsistent with right of the plaintiffs.
- Alternatively, a declaration that the plaintiff is entitled to the sum of N1, 000, 000.00 as Annual Royalty and reviewable by the plaintiff.”
The Plaintiff filed his Statement of Claim along with writ on 27/1/04. On 1/4/04
Uke, J. who presided ordered substituted service of court processes in the suit on the defendant. The defendant entered appearance on 9/6/04. When the order for substituted service was made on 1/4/04 the suit was adjourned to 19/4/04 for mention.
In view of the brevity of the entire proceeding (One page proceeding) leading to the judgment of the trial court I deem it necessary to set out the various dates the case came up, with appearances and orders made by the trial court on each date.
One 13/2/04, parties were absent and no indication that the defendant was represented by counsel. The case was adjourned to 20/2/04 for mention and the trial court ordered that the defendant be put on notice but it did not come up again till 5/3/04. Again parties were absent and there was no representation for the, defendant. It was adjourned to 1/4/04 for mention once more. On 1/4/04 the ex parte motion for substituted service was taken and granted and the suit was adjourned to 19/4/04 for mention. The next date was 10/5/04. Parties were absent and defendant was not represented. The case was adjourned to 9/06/04 for mention and the record signed by one “Sarah Nkono – c/et”. On each 9/6/04 and 15/7/04 the matter came up for mention, parties were absent and the defendant was not represented by counsel. The matter was adjourned for mention and the record signed by “Sarah Nkono – c/et”.
On 5/8/04 the Plaintiff was in court but the defendant was absent and was not represented by counsel. Uke, J. presiding adjourned to 14/10/04 for hearing. The matter come up again on 25/11/04 on which date the plaintiff was in court and as usual the defendant was absent and not represented by counsel. The court adjourned the case to 8/12/04 for plaintiff to prove his case. On 14/1/05 the Plaintiff was in court, the defendant was neither present nor represented by counsel. The plaintiff on record testified as PW 1 rested his case and the court below adjourned to 18/01/2005 for judgment.
Predictably the lower court in its judgment delivered on 18/1/05 entered judgment for, and granted all the reliefs claimed by, the plaintiff.
Aggrieved by the judgment, the defendant (now Appellant) pursuant to leave granted him on 16/3/06 filed a notice containing four grounds of appeal on 16/3/06. Five additional grounds were filed with leave on court on 30/4/08 bringing the number to 9. In the Amended Appellant’s Brief of Argument filed on
30/4/08, the appellant distilled three issues from his nine grounds of appeal:
2.1. WHETHER proceedings of 10/5/04 and all subsequent proceedings particularly those of 14/1/05 upon which the judgment of 18/1/05 have (sic) predicated, including the aforesaid judgment are not vitiated for being in breach of the rules of fair hearing?
2.2. WHETHER or not there was evidence on record to establish the representative capacity upon which Respondent prosecuted his action, and if there was none whether respondent in his personal capacity has the standing to maintain his suit.
2.3. WHETHER having regard to the evidence/materials before the court below, the court was justified in granting respondent the declaration and injunctive reliefs sought?
In his amended brief of argument filed on 3/2/09 the Respondent adopted the three issues in the appellant’s brief.
Respondent’s counsel, Chief Onyebueke filed on 3/21/09 what he tagged “preliminary objection” intended to be notice of preliminary objection to issue one in the appellant’s brief. The grounds of objection are:
“(a) the same issue was canvassed and contested and decision given In respect of same.
(b) The contest was between same parties and on the same Issue.”
Order 10 of the Court of Appeal Rules 2007 deals with notice of preliminary objection. Order 10 r. 1 provides “A respondent intending to rely upon a preliminary objection to the hearing of the appeal, should give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and should file such notice together with twenty copies thereof with the Registry within the same time.”
Though not so expressed by the order, as matter of practice and procedure a respondent relying on a preliminary objection to the hearing of appeal argues the grounds of objection separately or incorporates same in the Respondent’s brief of argument. Here the respondent merely stated his grounds of objection. He did not argue the grounds anywhere. Be that as it may I will consider the grounds of objection for what they are worth. The summary of the grounds of objection is that the case had been decided between the parties in the same suit. The objection was predicated on vague grounds. The respondent cannot rely on a previous contest and decision on any issue between the parties without stating particulars of the suit number and the issue decided and the date the decision was rendered. The preliminary objection has no valid grounds and is hereby dismissed.
I have paraphrased the records of the lower court from the inception of the case to the judgment and in order not to compromise a possible subsequent proceeding in the mater, I will single out issue one for determination.
Relying on the issue, learned counsel for the appellant cited the proceedings of the lower court. He referred to the order made on 20/7/04 that the appellant be put on notice and said that “that order became redundant and otiose by the subsequent supervising order for substituted service of the writ and claim on appellant”. He said the order for substituted service did not include hearing notice for 19/4/04 or of subsequent hearing date to be served on the appellant. He relied on CARTENNIG. LTD. V UBA PLC (2003) FWLR (pt. 178) 1011 at 1027 C – D in his contention that the appellant had no notice that the proceedings had been adjourned to 19/4/06. Relying on a plethora of cases learned counsel submitted that the proceedings of the trial court are in breach of the appellant’s rights to a fair hearing vide 36(1) of the 1999 Constitution.
In reply learned counsel for the Respondent said issue one was dealt with in the application to set aside the judgment. He said the court duly considered It and gave its decision and since there was no appeal against the ruling If Is abuse of process of court to raise the issue in this appeal. In the alternative counsel argued there was no intention on the part of the Respondent or the trial court to determine the matter behind the appellant as the respondent applied for and obtained order for substituted service on the appellant. He contended that the appellant who duly entered appearance intentionally abandoned the proceedings after taking part in same. He relied on JONDSON TRIANGLE LTD. v CHARLES MOH & PARTNERS LTD (1991) 1 NWLR (pt. 568) p. 555 at 558. He urged the court to dismiss the appeal on Issue one.
In his reply brief learned counsel for the appellant said that In the motion to set aside the judgment the lower court relying on RESO v INANG (supra) considered not the duty of the court to issue hearing notice but the duty of court to ensure that once ordered, hearing notice is served as ordered. In the alternative, learned counsel argued that the proceedings before Itam, J. were interlocutory. He cited ALAGE EFFON v FASAN (1958) NSCC 35 at 37 – 38; BANSAH v OLLIVANT LTD 14 WACA 40; OMONUWA v OSHODIN & ANOR (1985) 1 NSCC 147 at 157 among others. He contended that the omission to issue and serve hearing notice on the appellant was part of the substantive proceedings before Uke, J. He invoked order 4 Rule 5 of the Court of Appeal Rules.
Respondent made a two-fold reply to the appellant’s argument on none service of process of court on him. First, he argued that the issue had been determined by Itam, J. in the motion to set aside the judgment and since the appellant did not appeal against the ruling it was abuse of process to raise the issue in this appeal. I do not think the appellant is precluded from raising an issue in the appeal against the judgment for the mere fact that the issue so raised was determined in the application to set aside the judgment. A decision in a matter in the judgment and a ruling on application to set aside the judgment are decisions of the lower court and the appellant can appeal against either of them or both of them.
The ruling of Itam, J. on the motion to set aside the judgment of Uke, J. did not purport to determine the issue in contention between the parties and so it is interlocutory. Appellant invoke rightly in my view Order 4 r. 5 of the Court of Appeal Rules 2007. It provides “The power of the court in respect of an appeal shall not be restricted by reason of an interlocutory order for which there has been no appeal” Secondly, he contended that neither the court below nor the respondent intended to hear and determine the matter behind the appellant, a fact which he said was demonstrated by the application and order for substituted service. If it is determined, as learned counsel for the Respondent appears to have admitted that the relevant processes ought to be served on the appellant but were not so served, it is irrelevant whether or not none service was intended by the court or the respondent or both of them. The legal effect on jurisdiction of the court of none service of process required to be served does not depend on the intention of any party or the court.
From what I set out earlier in this judgment the trial court on 13/2/04 rightly ordered that “the defendant be put on notice”. See page 9 of the record.
When the case came up again on’ 5/3/04 the appellant was absent and the Asst. Registrar adjourned the matter “off-record” to 1/4/04 for mention, a date on which the ex parte application for substituted service was granted. The mater was adjourned to 9/6/04, 15/7/04 and 5/8/04 for mention by one “Sarah Nkono – c/ct”. On 5/8/04, Uke, J. adjourned to 14/10/04 for hearing. Up to this point the court did nothing to verify that its order to put the appellant on notice made on 20/2/04 was carried out. With respect, I do not share the views of learned counsel for the appellant that the order to put the appellant on notice “became redundant and otiose by the subsequent supervening order of substituted service of the writ and claim on the appellant”. The subsequent order for substituted service merely specified the means of carrying out the earlier order to put the appellant on notice. There was no notice to the appellant that the matter had been fixed for hearing on 14/10/04 or any other date. The originating process may have been served by substituted means as ordered by the trial court. Whether the order for substituted service includes hearing notice, a point taken by learned counsel for the appellant, is not material. What is material is that the hearing notice ought to have been served on the appellant by substituted service as ordered by the court or by any other means In so far as he is made aware of the hearing date. None service of hearing notice on the appellant for the hearing on 14/10/04 is a fatal flaw to the entire proceedings from that date to judgment. It robbed the trial court of jurisdiction to hear and determine the matter. See SKENCONSULT NIG. LTD. V UKEY (1981) 1 SC 6. I agree with learned counsel for the appellant that the proceedings from 14/10/04 to the date of judgment and including the judgment were taken in breach of the appellant’s right to fair hearing. See S. 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. Service of a hearing notice on the appellant in the circumstance of this case is a pre-condition to the exercise of jurisdiction by the court below and the said court laboured In vain in absence of proof of hearing notice or any other proof that the appellant had knowledge that the case was slated for hearing on 14/10/04.
The implied apology in the submission of learned counsel for the respondent that neither the trial court nor the respondent intended to determine the case behind the back of the appellant is noted. Be that as it may a hearing notice ought to be served on the appellant and the fatal effect of non-service of the process on the proceedings cannot be mellowed down by the state of mind of the court or the respondent. It is an infringement of the appellant’s right to an opportunity to be heard in his defence. See UBA LTD V MRS NGOZI ACHORIS (1990) 1 WASC 1 at 3 ratio 8. And in jurisprudence the Infringement of a right gives rise to a remedy at law. See J. E. K. A APPIAH v THE REPUBLIC (1990) 1WASC 27 at 28.
Appellant is therefore entitled to have the proceedings declared a nullity as a remedy for a violation of his right to a fair hearing. The proceedings are null and void and I so declare. See F. B. N. PLC. V OBIADE & SONSENT. LTD (1998) 2 NWLR (pt. 538) 410.
The threshold issue is resolved in favour of the Appellant. The other issues in the appeal have become academic and their resolution may pre-empt the subsequent trial of the suit.
I allow the appeal, set aside the decision of Uke, J. and remit the case to the Han. Chief Judge of Cross River State for re-assignment for trial de novo.
I order that each patty bears his own costs.
Other Citations: (2009)LCN/3294(CA)
