Afonja Community Bank (Nig) Ltd V. Mr. M. F. Akpan (2001)
LawGlobal-Hub Lead Judgment Report
AMAIZU, J.C.A.
This is an appeal against the ruling of Gbadeyan, J., of the Kwara State High Court, sitting at the Ilorin Division of the court. The ruling was delivered on the 15th day of October, 1999. The ruling was as a result of a motion on notice brought before that court seeking the following reliefs:-
“(1) An order of the court extending the time within which the applicant may apply for an order setting aside the judgment of the court in suit No. KWS/108/96 delivered on 18th December, 1998.
(2) An order of the court setting aside the judgment of the court in suit No. KWS/108/96 delivered on 18th December, 1998.
(3) And for such further order or other order or orders as the court may deem fit to make in the circumstances.”
The facts that led to the ruling are that the respondent as the plaintiff in suit KWS/108/96 claimed against the appellant as the defendant the following reliefs:-
- A declaration that the plaintiff is separate and distinct from the limited liability company Modern Morgy & Sons Ltd., and that he is not liable for the loan granted the company by the defendant.
- An order restraining the defendant, her agents, servants and privies from further harassment of the plaintiff in any manner whatever on account of the loan to Modern Morgy & Sons Ltd.
- The plaintiff claims the sum of N1.5m as general damages for unlawful detention, sundry harassment and embarrassment caused him by the defendant.
Pleadings were duly filed and exchanged by the parties. The hearing of the suit suffered many adjournments because the appellant and his counsel did not attend the sittings of the court.
Before the trial started, the respondent amended his statement of claim once. The trial proceeded at the stage of the amended statement of claim and the statement of defence. At the hearing, the appellant and his counsel were again absent. The respondent was called upon to prove his case. He gave evidence but called no witness.
It is his evidence that he was appointed the Managing Director of Modern Morgy & Sons Ltd. at a meeting held by the Board of Directors of the company in 1993. During that period, the company won a contract from the State Government to construct an access road from the Nigerian Television Authority (NTA) sub-station, Ganmo to Radio Kwara sub-station also at Ganmo. The total cost of the contract was N1,513,916.25. The company was unable to fund the contract. It approached the appellant a bank which provided the money. The security for the loan was the undertaking by the company that all payments in respect of the contract should be made into the account of the company with the appellant.
The company completed the contract on schedule. The performance was certified by the officials of the Kwara State Government that it was up to the contract value. Still, the Kwara State Government did not pay the money due to the company into its account with the appellant.
Because of this, the appellant started harassing the respondent and his household in his personal capacity as if the respondent was the debtor. The appellant hired the services of a private security outfit by name “Fagba Private Investment Bureau Services” to intimidate the respondent. It got to a stage when the respondent was at the instance of the appellant arrested and detained by the “B” Division of the Nigeria Police, Ilorin. The respondent was later transferred to the Force Headquarters, Alagbon, Lagos where he was further detained.
It was because of the detention and molestation by the agents of the appellant that the respondent sued the appellant in the lower court. At the trial, the respondent tendered 7 exhibits in proof of his case. The learned trial Judge after considering the evidence of the respondent and the written address of his counsel gave his judgment. Part of it reads:-
“… Although I find the plaintiff very modest in his unchallenged claim of N1.5m, I hereby order that the defendant bank shall pay the plaintiff general damages assessed at N1,250,000 for causing him all the enumerated unlawful detention, harassment and embarrassment.”
The appellant claimed that it was not served any hearing notice.
It got to know of the judgment when a copy of the judgment was sent to it on the 25th May, 1999, five months after the delivery of the judgment. The appellant consequently brought a motion on notice claiming the reliefs set out above.
The learned trial Judge after hearing the parties on the motion ruled as follows:-
“In this case both parties had equal opportunity to present their respective cases. They both had a plain ground. If for any reason unknown to the court, a defendant chose not to defend after filing his statement of defence, he is deemed to have exercised his constitutional right to present his case the way he wants it and the court cannot compel such a defendant to give oral testimony. In the circumstance, such a decision is not a default judgment but a decision on the merit. It would therefore, be wrong for the same party to turn round to heap any blame on the court that audi alteram partem is not observed or that there is a miscarriage of justice or that there is an abuse of court’s process.
Consequently, this frivolous application supported by affidavits seemingly bordering on perjury shall be and it is hereby dismissed.”
The appellant was dissatisfied with the ruling. It has appealed to this court. In compliance with the rules of this court, the parties through their counsel filed and exchanged briefs of argument. The appellant formulated one issue for determination, that is Whether having regard to the circumstances of this case, the proceedings leading to the judgment dated 18/12/98 is a denial of fair hearing rendering the judgment a nullity.
The respondent on the other hand posed the following questions for determination, i.e.
- Whether the trial High Court can validly exercise a discretion in favour of an application conceded to be supported by affidavit “seemingly bordering on perjury.”
- Whether the appellant or his counsel had adequate opportunity to defend this suit before the trial High Court, and a sub-issue. Whether if this answer is in the affirmative there was any breach of the rules of fair hearing.
I intend to consider the appeal on issue 2 formulated by the learned counsel for the respondent. This is:-
Whether the appellant or his counsel had adequate opportunity to defend this suit before the trial High Court and a sub-issue, whether if this answer is in the affirmative there was any breach of the rules of fair hearing.
Arguing the one issue, Nwangwu, Esq., of counsel, submitted that the principle of law that vests a court with adjudicating competency is the full jurisdiction over the subject-matter and the parties involved in the litigation process before it. He cited Madukolu v. Nkemdilim (1962) 2 SCNLR 341. In the view of the learned counsel, the appellant was not afforded a fair hearing before the judgment was entered against it. He submitted that the hearing violated the constitutional right of the appellant as guaranteed by section 36 of the Constitution of the Federal Republic of Nigeria, 1999. He submitted that it is the duty of a court to be satisfied that all processes of that court meant to be served have been served on the party concerned before the court would hear the case in the absence of that party. If this is not done, then the principle of fair hearing would not be said to have been observed. He contended that failure to serve such a process on a party is a fundamental omission which entitles the party not served to have any order made against him by the court set aside. It is the view of the learned counsel that any judgment delivered consequent upon the violation of the principle of audi alterarn partern which causes injustice to any party, amounts to a miscarriage of justice and should be declared null and void. He relied on Amuwah Trans. (Nig.) Ltd. v. 0. A. Trans. (Nig.) Ltd. (1998) 6 NWLR (Pt. 555) 684. He urged the court to examine carefully the record of the entire proceedings in the lower court since the central point in the appeal is the issue of fair hearing. He cited Ebele v. Ikweki (No.2) (1995) 7 NWLR (Pt. 405) p. 91.
The learned counsel submitted that the records show that each time the learned trial Judge adjourned the case to a new date no attempt was made to inform the appellant. In the learned counsel’s view, it should have occurred to the respondent and his counsel when the appellant and his counsel were conspicuously absent from the court that it was not only necessary but also prudent for them to ensure that the appellant was served with a hearing notice personally as is provided in Order 12 rule 1 of the Kwara State High Court (Civil Procedure) Rules. It is further the view of the learned counsel that the justice of the case demands that the trial Judge ought to have realised that he could not have effectively done justice between the parties without hearing from the appellant. The trial Judges should have ordered personal service of the hearing notice on the appellant before hearing the evidence of the respondent.
The learned counsel submitted that a party should not be denied an adjudication of his case on the merit because of procedural default unless the default causes prejudices to his opponent which cannot be compensated by an award of costs.
The learned counsel conceded that if the counsel for the appellant decided to withdraw his services, he should have informed the lower court of his decision. The learned counsel referred to the case of the Federal Republic of Nigeria v. Abiola (1997) 2 NWLR (pt. 488) p. 439 at 444 and contended that a counsel continues to represent his client as long as that counsel has not applied to withdraw his representation. In the learned counsel’s view, the failure of the counsel for the appellant to inform the court that he had withdrawn his representation was not deliberate. He submitted that the court should not visit the negligence of counsel on his client.
The learned counsel reminded the court that the case of the appellant is that it did not know the cases affecting the bank in which the former counsel was appearing. He contended that the explanation is sufficient to satisfy the condition laid down in the case of Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) 1 – 2 S.C. 145 at 153 for a court to set aside its own judgment given in the absence of one of the parties before it.
Finally, the learned counsel referred to Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 at 566. Kano v. Bauchi Meat Products Co. Ltd. (1978) 9 -10 S.C. 51 at 56 and contended that the hearing of 17/1/98 which gave rise to the default judgment is a nullity.
He urged the court to resolve the issue in favour of the appellant and allow the appeal.
In his reply, Bamigboye, Esq., of counsel, referred to exhibit R3 attached to the counter-affidavit dated 13th day of June, 1999. In the learned counsel’s view, the exhibit shows that the learned counsel for the appellant, J. B. Oyeleye, Esq., was served with a hearing notice indicating that the suit was for hearing on 17/11/98. It is further the view of the learned counsel, that the learned trial Judge exercised his discretion rightly based on the exhibit in dismissing the application of the appellant to set aside the judgment. In this regard, the learned counsel referred to the observation of the Supreme Court that an appellate court will not interfere with the exercise of a discretion by the lower court simply because if that appellate court was faced with a similar situation, it would have exercised its discretion differently. He cited 7up Bottling Co. Ltd. & Ors. v. Abiola & Sons Ltd. (1995) 3 NWLR (Pt. 383) 257; (1995) 3 SCNJ 37. In the learned counsel’s view, an appellate court would only interfere with the lower court’s exercise of discretion if the discretion was exercised upon a wrong principle or a mistake of law, or under a misapprehension of the facts or has taken into account irrelevant matters etc. He relied on the case of Nigerian Airports Authority v. Chief Dick Celestine Okoro (1995) 6 NWLR (Pt. 403) 510; (1995) 7 SCNJ 1.
He reminded the court that an application to set aside a judgment of a court given in the absence of a party is not granted as a matter of course. In the view of the learned counsel, for an applicant to be entitled to that indulgence of the court, the applicant must advance cogent, credible and convincing reasons. He cited the case of Bank of Baroda & Ors. v. Mercantile Bank (Nig.) Ltd. (1987) 3 NWLR (Pt. 60) 233; (1987) 6 SCNJ 165 at 173. It is the learned counsel’s view that the service of exhibit R3 on the appellant’s counsel, is a good and valid service.
The learned counsel contended that the only evidence in support of the appellant’s application to set aside the judgment of the lower court are false averments in the appellant’s affidavit. That being the case, the learned counsel submitted that there are no materials on which the court would have exercised its discretion in favour of the appellant. The learned counsel submitted that what this court has to consider is whether the appellant or his counsel had adequate notice of hearing of the suit. And, further, whether they had the opportunity to defend the suit. He observed that the judicial test of fair hearing as laid down by the Supreme Court is:- “…the impression of a reasonable person who was present at the trial, whether from his observation justice has been done.”
He cited Edwin Ogba v. The State (1992) 2 NWLR (Pt. 222) 164.
The learned counsel referred to the provisions of section 33 of the 1999 Constitution of the Federal Republic of Nigeria. He reminded the court that the suit was filed on 7th May, 1996. The hearing suffered eight adjournments viz:
11/12/96, 26/2/97, 10/4/97, 17/6/97, 30/7/97, 6/10/97, 24/11/97, 5/3/98, all in a bid to get the appellant defend his case.
Continuing, the learned counsel observed that it was after the eight adjournments, spanning 2 years, 6 months and 10 days from the 7th of May, 1996, that the case finally was heard on 17/11/98, The learned counsel emphasised that the hearing notice served personally on the counsel for the appellant on 6/11/98 clearly states that the case was for hearing. He referred to exhibit R3.
The learned counsel further observed that on all the occasions the suit was adjourned, the trial court ordered fresh hearing notices to be served on the counsel for the appellant. The orders were complied with. The learned counsel submitted that the adjournment of the suit for over 21/2 years in attempt to give the appellant opportunity to appear for his defence has more than over indulged the appellant. He referred to the submission of the learned counsel for the appellant that the sins of the former counsel should not be visited on the appellant and submitted that to keep indulging litigants for what they call mistake of counsel is to: “present negligence, carelessness in advertence and misconception of law as a banner for excellence in our legal profession. Let these defaults disappear from the arena of practice of law in our courts.”
He cited University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; (1984) 11 SC 152, 194. In the learned counsel’s view, the conduct of the appellant and his counsel is worse than negligence, carelessness etc. It is further his view that it is calculated and deliberate irresponsibility designed to frustrate the case. Still, in the learned counsel’s view, this type of conduct must not be condoned. It is the learned counsel’s view that a litigant who makes a choice of counsel swims and sinks with the counsel’s conduct. The litigant if he feels, may seek remedy in appropriate cases.
The learned counsel referred to the amended statement of claim and observed that with the admission of paragraphs 18 and 19 by the appellant, the substratum of the claim of the respondent was admitted.
Finally, the learned counsel submitted that the question of breach of the rules of fair hearing does not arise, as a party whose counsel was notified of a date for hearing of a case is bound by the notice to his counsel. He urged the court to resolve the issue in favour of the respondent and dismiss the appeal.
It is a fundamental requirement of our adversary system of administration of justice that a party to a cause or matter is entitled to be heard and must be given the opportunity to be heard before a decision can be given against him. The right to be heard is so fundamental a principle of our judicial system that it cannot be compromised on any ground. A hearing can only be fair when all the parties to the dispute are given an opportunity of being heard. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing General Oil Ltd. v. Chief Sunday Ogunyade (1997) 4 NWLR (Pt. 501) p. 613.
It has to be pointed out however that what constitutes fair hearing depends on the circumstances of each case. The real test is an objective one. See The Council. The Federal Polytechnic. Mubi v. T. M. Yusuf & Or. (1991) 1 NWLR (Pt. 165) p. 81. It is my view, that in considering any appeal which relates to the issue of fair hearing, the whole proceedings in the court below must come under scrutiny.
As I have stated earlier in this judgment, the parties duly filed and exchanged pleadings. The respondent amended his pleading once. It is trite that once the preliminaries of a case have been completed namely, service of the writ, entry of appearance, it is the duty of counsel to keep themselves abreast of the business of the court. A counsel therefore, cannot be heard to complain that he was not aware of the date a case is fixed for hearing. See Dr. Jimi Aina & Anor. v. Musa Obabiolorunkosi (1986) 2 NWLR (Pt. 22) p. 316.
In this present appeal, the appellant is a limited liability company engaged in banking business. It has its office at 5 Oja Iya Street, Off Ibrahim Taiwo Road, Ilorin. Its complaint is that it did not know the dates the hearing of the case were adjourned to. Consequently, the case was heard and judgment given in its absence.
Under Order 12 rule 8 of the Kwara State High Court (Civil Procedure) Rules –
When the suit is against a corporation or a company authorised to sue and be sued in its name, or in the name of an officer or trustee, the writ or other documents may be served, subject to the enactment establishing such corporation or company or under which it is registered, as the case may be, by giving the same to any director, secretary or other principal officer, or by leaving it at the office of the corporation or company.
From the above provision the appellant may be served at its office at 5 Oja Iya Street, Off Ibrahim Taiwo Road, Ilorin. Such a service on the appellant is a valid and proper service. But that office address is not the only place where a valid service of a process can be effected on the appellant.
It has been accepted that where a counsel to a party uses his address as address for service in a case, and he is served through that address, he is presumed to be aware of and have notice of the various hearing dates of the case. See Dr. Jimi Aina & Ors. v. Musa Obabiolorunkosi (supra).
In the present case, the former counsel of the appellant, J. B. Oyeleye, Esq., filed two documents on behalf of the appellant in the lower court. The documents are:-
(1) Memorandum of appearance; and
(2) Statement of defence.
In each of these documents the learned counsel gave address for service as:-
“Chiddy Chambers
1A Oro Road
Ilorin
Kwara State.”
From all I have said above, any service on the learned counsel through the address is good service on the appellant. There is however another reason why such a service should be a valid and proper service. The learned counsel gave the address of service on the appellant as care his Chambers. He has by that singular information led the respondent to believe that he can safely serve his client through his Chambers. Therefore, neither the appellant nor its counsel will be allowed to go back on that information as it would be unjust or inequitable for them to do so. This is the principle in High Trees case otherwise known as Central London Property Trust Ltd. v. High Trees Ltd. (1947) KB. 130.
It is to be remembered that the appeal is against the ruling of the lower court dismissing the application of the appellant seeking to set aside the judgment delivered on 18th day of December, 1998, in its absence. Our apex court in Idamu Ugwu & Ors. v. Nwaji Aba & Ors. (1961) An NLR 438 and Adebayo Doherty v. Ade Doherty (1964) NMLR 144 at 145 set out clearly what are to be considered when dealing with an application to set aside a judgment obtained in default of appearance and relist the case for hearing on the merits. The considerations are that the court must consider:-
(a) The reasons for the appellant’s failure to appear before the court when the case was heard.
(b) Whether there had been undue delay in making the application so as to prejudice the other party.
(c) Whether the other party would be prejudiced or embarrassed by an order for a new trial so as to render it inequitable to reopen the case; and
(d) Whether the applicant’s case is manifestly insupportable.
In the case of Williams & Ors. v. Hope Rising Voluntary Funds Society (1982) NSCC p. 36 the Supreme Court per Idigbe, J.S.C., (as he then was) agreed with the view expressed by Bello, S.P.J., (as he then was) in the case of Momoh v. Gulf Corporation (1975) NNLR 94 at 96 that in addition to the foregoing, the court being asked to exercise its discretion to set aside its own judgment must also be satisfied that the applicant’s conduct throughout the proceedings i.e., “from the service of the writ upon him to the date of the judgment” has been such as to make his application worthy of sympathetic consideration. It is pertinent to mention that all of these matters have to be resolved in favour of the applicant before the judgment should be set aside. It is not enough that some of them can be so resolved.
From the record of proceedings, the hearing of the suit started in the lower court from 4/6/96 and it ended when the judgment was given on 18/12/98. The hearings suffered eight adjournments all in the attempt to see if the appellant would put up appearance. At each adjournment, hearing notice was served on the learned counsel for the appellant. It is important to observe that the former counsel J. B. Oyeleye, Esq., did not swear to any counter-affidavit denying that he was regularly served with hearing notices.
In the absence of any averment to the contrary, this court has to accept the averment of the respondent in that regard. In that case, it can rightly be said that from the service of writ on the appellant to the date of judgment in this case, the conduct of the appellant cannot be described as encouraging. The reason given for the failure of the appellant to appear is not acceptable. Furthermore, the admissions made by the appellant in paragraph 1 of the statement of defence show that the appellant’s case is manifestly insupportable. It follows that the appellant’s application does not require sympathetic consideration.
On these and for the reasons I have given earlier in this judgment, I am of the firm view that this appeal lacks merit. Accordingly, I dismiss it with N5,000.00 costs in favour of the respondent.
Other Citations: (2001)LCN/1058(CA)
