Akwa Ibom State College of Education, Afaha Nsit V. Mrs. Ekaette Umanah Ekong (2008)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A,
This is an appeal against the judgment of Ita Mbaba, J., in Suit No. HU/UND/72/07 delivered on 6/8/07.
The brief facts of the case now on appeal are that the respondent who was plaintiff at the court below, was given a temporary employment by the Akwa Ibom State College of Education, as a Lecturer III on 6th of April, 2005 and posted to the General Studies Department. That appointment was terminated by the appellant through a letter dated the 1st of February, 2007. The termination of the temporary appointment was with effect from 28th of February, 2007. Subsequently, the respondent instituted proceedings against the appellant before the High Court of Akwa Ibom State sitting at Uyo under the undefended list procedure. The endorsement on the writ is as follows:
“The plaintiff claims against the defendant the sum of N708,965,52 (Seven hundred and eight thousand, nine hundred and sixty-five Naira, fifty-two Kobo), being her unpaid salaries and allowances from June, 2005 to February, 2007. The breakdown is as follows:
(i) 20 months Salaries at N31,930.12 per month from June, 2005 to February, 2007 = N638,602.40
(ii) Leave Grant 2005 = 19,216.50
(iii) Leave Grant 2006 = 19,216.50
(iv) One months salary in lieu of one month Notice of termination 31,930.15
Total N708,965.52
(b) 20% interest from 1st day of July, 2005 until the final payment of the judgment debt.
(c) The Cost of this action.”
The appellant at the court below contended that the suit was commenced at the wrong venue. It then filed an application before the Chief Judge of the State for the matter to be transferred to the appropriate venue for hearing and determination. It also filed a Notice of Intention to defend supported with an affidavit and exhibited the application before the Chief Judge for transfer of the matter to the appropriate Judicial Division. The trial court ignored the Notice of Intention to defend the affidavit and the exhibits thereto and entered judgment in favour of the respondent. The learned trial Judge held at pages 31 – 32 of the record as follows:
“ON MONDAY THE 6TH DAY OF AUGUST, 2007
Parties are present.
Nse Williams Esq. for the Plaintiff.
Idongesit Umoh Esq. for the Defendant.
COURT:
JUDGMENT
I have seen a notice of intention to defend this suit filed by the defendant on 20/7/07, with the affidavit therefore. But in the affidavit, the defendant asserted that the case is in the wrong venue; that it should be heard by Etinan High Court, where the defendant resides,that it had filed a motion before the Chief Judge to transfer the case to Etinan High Court and that the reasons it intends to use to defend the action would be filed at the appropriate venue. If the matter is ultimately transferred to the said venue. Meanwhile, I have not been served with any Order transferring this case from this Court and nothing has been done to fault my power to hear this case. There is one High Court in the whole of Akwa Ibom State with different Judicial Divisions and different Judges for administrative convenience. Since the defendant has not filed any defence to this case of debt, on the merit as required by law, the applicable Rules of Court enjoins me to enter judgment for the plaintiff in the circumstances. See Order 23 Rule 4 of the High Court Civil Procedure Rules. This position also enjoys the practice of court in plethora of cases. Accordingly, Judgment is hereby entered for the plaintiff in the sum of seven hundred and eighty thousand Naira, nine hundred and sixty-five Naira fifty-two Kobo (N708,965.52), being her unpaid salaries and allowances from June 2005 to February 2007. The defendant shall also pay the costs of this action, assessed at ten thousand Naira (N10,000.00) as well as interest on the said judgment debt at the rate of 10% per annum, from the date of this judgment until same is fully liquidated.
(Sgd.) Ita G. Mbaba
Judge
6/8/07.”
Aggrieved by the decision of the trial Judge, the appellant appealed to this court on 5 grounds subscribed in its notice and grounds of appeal dated 17/8/07 and exhibited at pages 33 – 36 of the record.
From the 5 grounds of appeal the appellant distilled only one issue in the appellant’s brief of argument dated 1/2/08 and filed the same day. The lone issue is:
“Whether the trial court adopted the correct procedure in entering judgment for the plaintiff/respondent?”
On the 16/4/08 the respondent filed her brief of argument dated the 16/3/08. She formulated a lone issue for determination in this appeal as follows:
“Whether the trial court did adopt the correct procedure in entering judgment against the defendant/appellant?”
On being served with the respondent’s brief of argument, the appellant filed a reply brief dated 7/5/08 and filed the same day. Before the court, counsel for the parties adopted and relied on their respective briefs as their arguments in this appeal.
Learned counsel for the appellant, Idongesit Umoh Esq. submitted on the lone issue for determination of the appeal that, by the provisions of Order 23 Rule 1 of Akwa Ibom State High Court (Civil Procedure) Rules, 1989, the trial court has the duty to dispassionately, strictly, scrupulously, meticulously and painstakingly scrutinize the affidavit of the plaintiff in support of application for leave to issue and place the Writ of Summons on the undefended list and the exhibits attached thereto, in order to ascertain whether or not the plaintiff’s suit is one suitable under the undefended list. Consequently, there is a duty on the trial court to appraise the plaintiff’s claim and be satisfied that prima facie, it is non-contentious in the sense that from the plaintiff’s affidavit there is evidence of admission of the claim by the defendant as a justification for dispensing with a trial of the action on the merit. The court must ensure that the action is non-contentious and that the action is for a liquidated sum. It is also imperative that the court makes a finding that there are good grounds for believing that there is no defence to the claim as a sanction for the issuance of the writ.
Learned counsel referred to paragraph 2 of the Writ of Summons, Exhibit ‘A’, the letter of appointment, at pages 5 – 7 of the record, paragraphs 9 – 11, 14 and 19 of the respondent’s supporting affidavit and Exhibit ‘M’, the plaintiff’s claim and concluded that the facts disclosed for the basis of the claim were highly hostile and hotly contentious. Counsel submitted further that the respondent’s claim was clearly a claim for arrears of salary and other entitlements but not a liquidated money demand as contemplated by Order 23 Rule 1 of the High Court (Civil Procedure) Rules, 1989 of Akwa Ibom State. He relied on Kabiru vs. Ibrahim (2004) 2 NWLR (Pt. 857) 326 at 330; Enye vs. Ogbu (2003) 10 NWLR (Pt. 828) 403 at 414; Brifina Ltd. vs. Inter Continental Bank Ltd. (2003) 5 NWLR (Pt. 814) 540 at 541 – 547.
Mr. Umoh referred to Exhibit COEA which is an application to the Chief Judge of Akwa Ibom State for the transfer of the matter to the appropriate venue pursuant to section 42(1) of the High Court Law of Akwa Ibom State, Cap. 55, Laws of Akwa Ibom State, 2000 and Order 10 Rule 4 of the High Court (Civil Procedure) Rules of Akwa Ibom State, 1989, and Exhibit COEB, the proposed affidavit showing a defence on the merit at pages 21 – 28 of the record. He then submitted that the trial court acknowledged the Notice of Intention to defend and the affidavit filed by the appellant at page 31 of the record, but proceeded to hold at page 32 of the record inter alia that:
“Since the defendant has not filed any defence to this case of debt, on the merit as required by law, the applicable Rules of Court enjoins me to enter judgment for the plaintiff in the circumstances.”
The trial Judge then proceeded to enter judgment for the respondent without considering the Notice of Intention,Exhibit COEB and the affidavit thereto. He contended that what is required is for the trial court to reach a definite and unequivocal decision on whether or not the defence put forward by the appellant has raised a triable issue.
Counsel pointed out that the Notice of Intention to defend filed by the appellant was properly filed in court and the objection to the venue was also proper in the circumstance. He relied on A-G, Enugu State vs. Avop Plc. (1995) 6 NWLR (Pt. 399) 90 at 92 and submitted that an annexture to an affidavit is automatically part of the affidavit. Mr. Umoh contended that the court is also enjoined to apply a measure of liberality when viewing the affidavit of the appellant in order to determine whether or not a defence on the merit is disclosed under the undefended list procedure. Relying on Eneji vs. International Transactions Ltd. (2000) 11 NWLR (Pt. 678) 225 at 226 and Jos North Local Govt. vs. Dariyan (2000) 10 NWLR (Pt. 625) 281 at 283, counsel submitted that the trial court acted on wrong principle and failed to take all the circumstance of the case into consideration. He concluded that it is manifestly clear that the judgment of the trial court will work injustice to the appellant except this court intervenes to set it aside as it was done in Okeke vs. Oruh (1999) 4 SC (Pt. 11) 37 at 45.
The counsel for the respondent, Mr. Nse Williams, submitted that the lone issue for determination can be subdivided into 3 namely:
“(a) What is (sic) defendant, served with court’s processes under undefended list, expected to do?
(b) In this- matter did the defendant do what was expected of it?
(c)and was the court not right in entering judgment against it?”
He then pointed out that by Order 23 Rule 3(1) of the Rules, a defendant in an undefended suit proceeding must file a Notice of Intention to defend the suit supported with an affidavit that must disclose a real defence to the action on the merits, and submitted that the appellant’s notice of intention to defend filed on 20/7/07 exhibited at pages 21 – 28 of the record is not in accordance with the law and it did not disclose any defence on the merit. See Ifeanyichukwu Trading Ventures Ltd. vs. Onyesom Community Bank Ltd. (2005) All FWLR (Pt. 253) 758 – 759 and Okoli vs. Morecab Fin. Nig. Ltd. (2007) 148 LRCN 1158 at 1162 – 1163. Learned counsel contended that paragraphs 3, 4, 5, 6, 7 and 8 of the said affidavit contain extraneous matters which offend sections 86 and 87 of the Evidence Act. He relied on Bamaiyi vs. The State (2001) 6 NSCQR (Pt. 1) 156 at 159. Counsel also contended that there is nothing known as “Proposed Affidavit showing Defence on the Merit” in the Evidence Act.
On the issue of the trial court not saying anything about Exhibit COEB, counsel submitted that by its paragraphs 2 and 3 of the affidavit, the appellant admitted the respondent’s claims. Relying on Okoli vs. Morecab Fin. Nig. Ltd. (supra), counsel submitted that a defendant who has no real defence to an action, should not be allowed to dribble and frustrate a plaintiff. He pointed out that where a statute has prescribed how a particular act should be performed, failure to do so will not only be interpreted as delinquent but it shall operate against the party in default. See also Adesanye vs. Adewole (2006) All FWLR (Pt. 340) 1000 at 1003. Mr. Williams submitted that the appellant having failed to set out a good defence satisfactorily to the trial court, its application was rightly and justifiably refused.
On the issue of the claim for the salary for June 2005, counsel submitted that it was a mere typographic error which this court can correct pursuant to Order 4 Rule 4 of the Court of Appeal Rules, 2007.
He concluded that the judgment of the trial court is correct therefore, this court should not disturb the judgment by ordering a retrial as this will certainly occasion injustice to the respondent.
The appellant in its reply brief dealt with only one issue namely, that by Order 10 Rule 5 of the High Court (Civil Procedure) Rules, Akwa Ibom State, 1989, in case any suit shall be commenced in any other judicial division other than that in which it ought to have been commenced, the same may, notwithstanding, be tried in the judicial division in which it should have been so commenced unless the court shall otherwise direct or the defendant shall plead specifically in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such case. He relied on Essang vs. Aureal Plastics Ltd. (2002) 17 NWLR (Pt. 795) 155 at 162 and 163. Counsel then concluded that the objection that the contract and payment involving the parties was within Etinan Judicial Division and not Uyo Judicial Division cannot be a means of dribbling the court having been timeously raised.
I have carefully considered the lone issue formulated by the parties in this appeal. They are like two sides of the same coin. I am inclined to adopt the one formulated by the appellant for the determination of this appeal and I do hereby adopt it because it is comprehensive and all encompassing.
I shall preface this judgment with a consideration of the issue of the omnibus ground of appeal which the respondent argued in paragraph 5.01 page 5 of the respondent’s brief of argument. The question of whether the judgment is against the weight of evidence was not an issue formulated by the parties. Certainly, that issue was not argued by the appellant in its brief, therefore, it is not an issue for determination in this appeal. Although, ground one in the notice of appeal is an omnibus ground of appeal since no issue was formulated from it, it is deemed to have been abandoned. Also a ground of appeal on which no argument is advanced either in the brief of argument or in oral argument is deemed to have been abandoned. See Dahiru vs. Kamale (2005) 9 NWLR (Pt 929) 8 at 56; Husseini vs. Mohammed (2005) 17 NWLR (Pt. 954) 393 at 420 and Oforkwe vs. Maduike (2003) 5 NWLR (Pt. 12) 166. At the Court of Appeal what is argued are the issues distilled for determination and not grounds of appeal. See Ikweki vs. Ebele (2005) 11 NWLR (Pt. 936) 397. I have accordingly discountenanced the respondent’s arguments on the issue.
Secondly, I observed that the respondent attached some documents marked Appendices 1, 2 and 3 to the respondent’s brief of argument. This is a novel procedure alien to the Court of Appeal Rules relating to filing of briefs of argument under Order 17 Rules 3(1), (2), (3), (4) and (5), Rule 4(1) and (2) of the Court of Appeal Rules, 2007.
Furthermore, Appendices 1, 2 and 3 are not part of the record of this appeal and the respondent has not filed any supplementary record. The court and parties are bound by the record of appeal. See Ossai vs. Wakwah (2006) 4 NWLR (Pt. 967) 208 at 212. See also Texaco Panama Inc. vs. SPDC (Nig.) Ltd. (2002) 5 NWLR (Pt. 759) 209 SC; Nwankwo vs. Ameto (2002) 2 NWLR (Pt. 752) 729 and Ekwomchi vs. Ukwu (2002) 1 NWLR (Pt. 749) 590. Lastly, the respondent has not applied to this court to adduce further or additional evidence pursuant to the provision of Order 4 Rule 2 of the Court of Appeal Rules, 2007. The respondent did not adduce any evidence relating to Appendices 1, 2 and 3 before the trial court, and she certainly cannot do so now before this court. See Josadeg (Nig) Ltd. vs. NDIC (2005) 9 NWLR (Pt. 929) 167 at 184. I shall therefore discountenance Appendices 1, 2 and 3. Having disposed of the above issues, I shall now deal with the main issue in this appeal.
The central issue in this appeal is whether the respondent’s claim was correctly dealt with as a claim under the undefended list. My first port of call is the provision of Order 23 Rule 1 of the High Court (Civil Procedure) Rules of Akwa Ibom State, 1989, and it provides as follows:
“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 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 good 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 a date for hearing suitable to the circumstances.”
First and foremost, a claim permissible under the undefended list must be for a debt or a liquidated money demand. What then is a “debt” or “liquidated money demand”? A “debt” is defined “as sum of money that someone owes”. See Oxford Advanced Learner’s Dictionary, 6th Edition, page 300. In Blacks Law Dictionary (with Pronunciations) 6th Edition, page 403, a “debt” is defined as: “A sum of money due by certain and express agreement.”
At page 930 of the same dictionary, “Liquidated debt” is defined as: “A debt is liquidated when it is certain what is due and how much is due. That which has been made certain as to the amount due by agreement of parties or by operation of law.”
“Liquidated demand” is defined as, “A demand the amount of which has been as certained or settled by agreement of parties or otherwise.”And in Maja vs. Samouris (2002) 7 NWLR (Pt.765) 75 at 102, it was held that a liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertainable or capable of being ascertained as a mere matter of arithmetic calculation without any other or further investigation. Whenever the amount which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be liquidated. However, where the court has to quantify or assess the damage whether pecuniary or non pecuniary, the damages are unliquidated. See also UPS Ltd. vs. Ufot (2006) 2 NWLR (Pt. 963) 1 at 27. In a claim under the undefended list, it is the primary duty of the trial court to determine whether the action is a proper one to be placed on the undefended list. This is an exercise which is essentially a judicial decision. See Maley vs. Isah (2000) 5 NWLR (Pt. 658) 651 and Nwakama vs. Ikom Local Government Area of Cross River State (1996) 3 NWLR (Pt. 493) 732.
Without going into the merits of the respondent’s claims, it is obvious that the claim is not a debt or a liquidated demand. In Vanguard Media Ltd. vs. Ajoku (2003) 11 NWLR (Pt. 831), the court in a similar case held:
“A claim for liquidated damages does not become such merely because a specific amount of money is claimed. Whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data, it is said to be liquidated or made clear. But when the amount to be received depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to be unliquidated………….. “The claim of the respondent before the trial court is a highly contentious one. The amount claimed cannot be precisely determined or ascertained from the terms of the agreement or contract between the parties. For instance, Exhibit ‘A’ at page 6 of the record states that the annual salary of the respondent is N192,165.06 which is N16,013.70 per month but the respondent claimed the sum of N31,930.12 as salary per month at page 19 of the record. There is no explanation as to how the respondent’s salary came to N31,930.12 per month.
The issue of leave grants for 2005 and 2006 is another claim which is contentious. Leave is not a right but a privilege. The question then arises, was the respondent entitled to those leave grants as alleged? How did the respondent arrive at the sum of N19,216.50?
Also, the claim for 20% interest from the 1st day of July, 2005 until final payment of the judgment debt certainly is not borne out by any agreement or contract between the parties. A claim of interest on the principal sum on which there was no agreement between the parties would make a case a contentious one rather than a simple case that can be decided legally under the undefended list procedure. The respondent’s claim for interest made the case before the trial court a contentious one that cannot be decided under the undefended list procedure. Where the facts of the matter are contentious the action is not appropriate for summary trial and should not be placed on the undefended list. See Kabiru vs. Ibrahim (supra) and KSTA vs. Ofodile (1999) 10 NWLR (Pt. 622) 259.
The undefended list procedure is a truncated form of ordinary civil hearing designed to ensure quick dispensation of justice but not at the expense of fair hearing. The rules are meant for quick disposal of cases which by their very nature are virtually uncontested. I must emphasise the fact that though the rules providing for the undefended list procedure are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed of, the need for fair hearing should not be sacrificed on the altar of expediency. However, the decision on whether the plaintiff’s action is appropriate for a summary trial or otherwise is absolutely and entirely within the discretion of the trial court which must strictly and scrupulously scrutinize the plaintiff’s claims brought under the undefended list as well as affidavit of the defendant filed in support of the notice of intention to defend the suit. The decision to place a case on the undefended list of the court is essentially a judicial decision which must be taken judicially and judiciously in a judicial proceeding which is capable of being scrutinized from the record of the court by any appellate court in order to determine whether or not that discretion of the trial court was exercised judicially and judiciously in accordance with the rules of court. See Baba vs. Habib (Nig.) Bank Ltd. (2001) 7 NWLR (Pt. 712) 496 at 506; Kabiru vs. Ibrahim (supra) at page 345 – 346 and Brifina Ltd. vs. Intercontinental Bank Ltd. (supra). Therefore, in an action on the undefended list, the judge has the primary duty to scrutinize the plaintiff’s affidavit to ascertain and be satisfied that the claim is appropriate for the undefended list before exercising his discretion to place the action under the undefended list.
Order 23 Rule 1 of the High Court (Civil Procedure) Rules, 1989, Akwa Ibom State provides expressly and mandatorily that the plaintiff in an application for a claim under the undefended list procedure such application must be supported by an affidavit setting forth the grounds upon which the claim is based and stating in deponent’s belief that there is no defence thereto:
“The Court shall, if satisfied that there are good grounds for believing that there is no defence thereto enter the suit for hearing in what shall be called the Undefended List……………………..”
In other words, the trial Judge must satisfy himself that there are no good grounds for believing that there is no defence to the claim before entering suit for hearing under the undefended list procedure. This is a condition, precedent and – – –
it is mandatory following the use of the word “shall”.
Apparently, the learned trial Judge did not advert his mind to the above Rule before proceeding to judgment and he made no such finding, which is a mandatory requirement of the Rule. This is a condition, precedent to the validity of any trial conducted under the summary proceedings on the undefended list. See Kabiru vs. Ibrahim (supra) and Enye vs. Ogbu (supra). The failure of the trial Judge to comply with the above stated Rule is a grave error bordering on miscarriage of justice. The learned trial Judge at page 31 of the record stated clearly that he had seen a notice of intention to defend the suit filed by the appellant, who was then a defendant. But rather than consider and scrutinize the affidavit attached to the Notice of Intention filed on 20/7/07, the learned trial Judge concentrated on the objection raised concerning the wrong venue, namely that the suit be heard by the Etinan High Court where the defendant resides and that it had filed a motion before the Chief Judge to transfer the case to Etinan High Court. I shall return to this issue anon. For now, let me examine the issue of the Notice of Intention to defend exhibited at page 21 of the record and the proposed affidavit showing defence on the merit, Exhibit COEB, exhibited at pages 27 – 28 of the record. It is well settled law that an annexture to an affidavit is automatically part of the affidavit. That is because an annexture automatically becomes an exhibit. See A-G, Enugu State vs. Avop Plc. (supra). It follows therefore that Exhibit COEB was automatically part of the affidavit disclosing the defence of the appellant. I am in agreement with the learned counsel for the appellant that once there is a notice of intention to defend and an affidavit disclosing a defence on the merit, even if irregularly filed, the trial court cannot on the pre that the said document was not properly brought before it proceed to enter judgment on the undefended list without adverting to it and without taking it into consideration. See Kisari Investment Ltd. vs. L.A. Terminal Co. Ltd. (2001) FWLR (Pt. 66) 766 at 772. Going carefully through the record particularly the judgment at pages 31 – 32, it is obvious that the trial Judge failed to demonstrate to what use it put Exhibit COEB. Since it was an exhibit before the court the trial Judge was obliged to give full and exhaustive consideration to Exh. COEB, the affidavit setting out the defence of the appellant.
Furthermore, the court is also enjoined to apply a measure of liberality when viewing the affidavit of the appellant in order to determine whether or not a defence on the merit is disclosed under the undefended list procedure. In Dantata and Sawoe Construction vs. Hassan (2001) 5 NWLR (Pt. 705) 129 at pages 136 – 139, this Court held that:
“It is desirable for the court exercising its power under the undefended list procedure to call into play a liberal approach when scrutinizing the affidavit of the defendant in support of the Notice of Intention to defend in order to determine whether or not a defence on the merit has been disclosed to justify granting the defendant leave to defend the action.”
In V.S. Steel (Nig.) Ltd. vs. Govt. Anambra State (2001) 8 NWLR (Pt. 715) 454 at 465 – 466, it was held, inter alia, that:
“Where a court proceeds under the undefended list procedure, it is desirable that it must call into play a measure of liberality when viewing the affidavit of the defendant in order to determine whether or not a defence on the merit is disclosed. If there are disputed issues of fact disclosed from a comparison of the plaintiffs and defendant’s affidavits, then the court must transfer the suit to the general cause list for determination on the merits.”
See also Eneji vs. International Transactions Ltd. (supra) and Jos North Local Govt. vs. Dariyan (supra).It is instructive and important to bring to the fore the provisions of Order 23 Rule 4 of the Akwa Iborn State High Court (Civil Procedure) Rules. The rule provides:
“Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.” [Underlining mine].
The operative phrase in the above rule is “Where any defendant neglects”.
In Oxford Advanced Learner’s Dictionary, 6th Edition, page 785, the word “neglect” is defined as:
“1. to fail to take care of something/somebody;
- to not give enough attention to something;
- to fail or forget to do something that you ought to do.”
In the instant appeal, contrary to the finding of the trial Judge at pages 31 – 32 of the record that the appellant had no defence to the claim, the appellant filed a notice of intention to defend supported with an affidavit disclosing the defence of the appellant to the action. Therefore, it cannot be said that the appellant neglected to deliver the notice of intention to defend and affidavit, prescribed by Order 23 Rule 3(1) of the Rules. By attaching Exhibits COEA and COEB to the affidavit filed before the trial court, the appellant has clearly demonstrated or manifested its intention to defend the suit. It cannot be said that appellant was non-challant or complacent. It delivered a notice of an intention to defend and affidavit disclosing its defence.
Where the court below failed to consider the defence disclosed in the affidavit in support of a defendant’s Notice of Intention to defend, the defendant, in this case the appellant, would have been denied his right of fair hearing or fair trial and the Court of Appeal will be justified in interfering with the judgment of the trial court given in such circumstance. See Kabiru vs. Ibrahim (supra); Eastern Plastic Ltd. vs. Svnco West Africa Ltd. (1999) 1 NWLR (Pt. 587) 456.
Learned counsel for the respondent conceded under paragraph 5.03 of the respondent’s brief that the appellant filed its notice of intention to defend on 20/7/07 but he raised the issue whether the said notice can be said to have met the required standard of the law. He contended that paragraphs 3 – 8 of the affidavit in support of the Notice of Intention to defend offend sections 86 and 87 of the Evidence Act. At this juncture, I am compelled to point out that trial court made no such finding in its judgment at pages 31 – 32 of the record and neither did it take the above matters into consideration. An appeal to the Court of Appeal is only competent where such issues raised therein are a challenge to the finding of the trial court. See Aribisala vs. Ogunyemi (2005) 6 NWLR (Pt. 921) 212.There is no ground of appeal on this issue and in fact the appellant did not raise the issue in this appeal. Therefore, the respondent cannot proffer or present any argument on the issue. I conclude therefore that argument or contention of the respondent is not an issue in the instant appeal.
Furthermore, the trial Judge failed to consider the notice of intention to defend and the affidavit thereto before entering judgment for the respondent, thus shutting the door of justice against the appellant and driving it away from the judgment seat. More importantly, the trial Judge blatantly denied the appellant the opportunity of being heard. A denial of fair hearing is enough ground for the Court of Appeal to set aside the judgment of the trial court. The principles of fair hearing entrenched in the constitution is so fundamental in the judicial process or the administration of justice that a breach of it will vitiate or nullify the whole proceedings. See the case of Saleh vs. Monguno (2003) 1 NWLR (Pt. 801) 221 at 224 and 248 and Okafor vs. A.G. Anambra State (1991) 3 NWLR (Pt 200) 59.
The doctrine of fair hearing envisages that both parties to a case are given ample opportunity of presenting their respective cases without let or hindrance right from the commencement of such case to its logical conclusion. It also envisages that the court hearing a case should be fair and impartial, without showing any bias for or against any of the parties. See the case of Ezechukwu vs. Onwuka (2006) 2 NWLR (Pt. 963) 151 at 155.
The right of fair hearing is guaranteed under section 36(1) of the 1999 Constitution. In Ezechukwu vs. Onwuka (supra), at page 156, this Court held thus:
“Fair hearing within the meaning of section 33(1) of the 1979 and section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria means a trial or investigation conducted according to all rules formulated to ensure that justice is done to the parties. In other words, it is an indispensable requirement of justice that an adjudicating authority to be fair and just, must hear both sides by giving them ample opportunity to present their cases. Olumesan vs. Ogundepo (1996) 2 NWLR (Pt. 433) 628; UBN Ltd. vs. Nwaokolo (1995) 6 NWLR (Pt. 400) 127; Ekiyor vs. Bomor (1997) 9 NWLR (Pt. 519) 1.”
The very essence of fair hearing under section 36 of the 1999 Constitution of the Federal Republic of Nigeria is a hearing which is fair to all parties to the suit; whether the plaintiff, the defendant, the prosecution or the defence. See the cases of Ogundoyin vs. Adeyemi (2001) 13 NWLR (Pt. 730) 403 and Ndu vs. State (1990) 7 NWLR (Pt. 164) 550 at 189 paras. C – D.
Fair hearing and fair trial are said to be synonymous and the test for its observance is not based on technicality-but on the substance of the proceedings and the objective view or opinion of a fair minded person who was present throughout the proceedings whether, in his opinion, justice has been done to the parties in the case. See NEPA vs. Arobieke (2006) 7 NWLR (Pt. 979) 245 at 276 and Faqbule vs. Rodrigues (2002) 7 NWLR (Pt. 765) 188. In Ariori vs. Elemo (1983) 1 SCNLR 1, the Supreme Court held that fair hearing involves situations where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. It means a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter.
Generally, the twin pillars of fair hearing are embodied in the latin maxims nemo judex in causa sua, that is, “you shall not be a Judge in your own cause” and audi alteram partem, that is, “hear the other side”.
The pillar of the rule of natural justice relevant to this appeal is the “audi alteram partem” rule. This rule connotes that a court or tribunal in the hearing and determination of a suit or dispute between parties must:
- hear both sides; not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
- give equal treatment, equal opportunity and equal consideration to all concerned.
- have regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
Courts are enjoined to observe compliance in regard to fair hearing in all cases such that a breach of it renders proceedings on the case null and void in any event, particularly in matters relating to the principle of audi alteram partem. In the instant case on appeal the trial court never thought it fit to hear the appellant or to consider the notice of intention to defend and the affidavit, Exhibit COEB The trial court ought to have heard from the appellant. The failure to do so is fatal to the proceedings which should therefore be set aside. See Alabi vs. Lawal (2004) 2 NWLR (Pt. 856) 134 at 147 and Ojengbede vs. Esan (2001) 18 NWLR (Pt. 746) 71.
The trial court by entering judgment without giving the appellant the opportunity to be heard or to enter into his defence, committed a fatal error as the breach of appellant’s right to fair hearing rendered the proceedings a nullity.
In So-Mai Sonka Co. (Nig.) Ltd. vs. Adzege (2001) 9 NWLR (Pt. 718) 312 at 322, this Court held thus:
“The obvious result of non-compliance with or breach of fair hearing especially in trials is the vitiation of such proceedings with the effect of rendering same null and void. In the instant case, as there was a breach of the appellants’ fundamental right to fair hearing, the decision arrived at by the trial court is a complete nullity. Akoh vs. Abuh (1988) 3 NWLR (Pt. 85) 696; Oyeyemi vs. Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt. 226) 661; Ceekay Traders Ltd. vs. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 and Military Governor of Imo State vs. Nwauwa (1997) 2 NWLR (Pt. 490) 675.”I shall now consider the issue of the appellant’s objection regarding the fact that the suit before the trial court was at a wrong venue. In furtherance of that objective the appellant exhibited the application to the Chief Judge of Akwa Ibom State for the transfer of the matter to the appropriate judicial division, to wit; Exhibit COEA, pursuant to section 25(1) of the High Court Law of Akwa Ibom State and Order 10 Rule 4 of the High Court (Civil Procedure) Rules, 1989. The appellant also exhibited, the Proposed Affidavit showing a defence on the merit as Exhibit COEB. See pages 21 – 28 of the record.
The respondent never adverted to or alluded to the above issue in the respondent’s brief, rather, learned counsel for the respondent submitted that the appellant’s Exhibits COEA and COEB were intended to dribble the court. He then concluded that a defendant who has no real defence to an action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to, by delay tactics, aimed not at offering any real defence to the action, but at gaining time with which he may continue to postpone meeting his obligation and indebtedness. He relied on Okoli vs. Morecab Finance (Nig.) Ltd. (supra) in support of his submission.
It appears clear to me that learned counsel for the respondent misconstrued the nature of the objection raised by the appellant in Exhibit COEA. Unfortunately, the trial court did not fair better. Order 10 Rules 5 and 6 of the High Court (Civil Procedure) Rules of Akwa Ibom State, 1989, provides as follows:
“5. In case any suit shall be commenced in any other Judicial Division than that in which it ought to have been commenced, the same may, notwithstanding, be tried in the Judicial Division in which it shall have been so commenced, unless the court shall otherwise direct, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such cause.
- No proceedings which may have been taken previously to such plea in objection shall be in any way affected thereby; but the Judge shall order that the cause be transferred to the Judicial Division to which it may be proved to his satisfaction to belong, or, failing such proof, that it be retained and proceed in the court in which it has been commenced, and such order shall not be subject to appeal.”
It is clear as crystal and undeniable that by virtue of Order 10 Rule 5 of the said Rules the appellant is entitled to plead specially in objection to the jurisdiction of the High Court sitting at Uyo, before or at the time when he is required to state his answer or to plead in such case. This is exactly what the appellant did in filing Exhibit COEA. I must also add that it did so timeously as required by the Rules. See Essang vs. Aureal Plastics Ltd. (supra), where it was held that:
“An action commenced in the wrong judicial division can be heard and determined in that judicial division, unless special objection to the hearing is taken and persisted with. This however does not imply that the rules as to venue or place of institution and trial of suits as enshrined in the rules of court should be broken lightly or should not be observed as much as possible and applied since the purpose of creating judicial divisions in a State is primarily for the convenience of the parties and to save time and costs of litigation which may be defeated if parties are allowed to file their suits in any judicial division of their choice. [Ajibade vs. Pedro (1992) 5 NWLR (Pt. 241) 257; Obasi Bros. (Nig.) Ltd. vs. Will Bros. (Nig.) Ltd. (1991) 3 NWLR (Pt. 181) 606 referred to.].”By virtue of the provision of Order 10 Rule 6 of the said Rules, the trial Judge was obliged to transfer the cause or matter to the Judicial Division to which it may be proved to his satisfaction to belong, or failing such proof, the cause shall be retained and heard in the court in which it has been commenced. It is a pity and indeed regrettable that rather than consider the objection raised and decide one way or the other the learned trial Judge failed in his primary legal and judicial duty and instead, he said:
“Meanwhile, I have not been served with any Order transferring this case from and nothing has been done to fault my power to hear this case. There is only one High Court in the whole of Akwa Ibom State with different Judicial Divisions and different Judges for administrative convenience………….”
By Order 10 Rule 6 of the Rules, it was for the trial Judge to order for the transfer of the cause to the Judicial Division to which it may be proved to his satisfaction to belong and not for him to wait for an order of transfer from anyone else. The rule is very clear on this. In my considered view the objection of the appellant cannot in the circumstances be a means of dribbling the court having been timeously made. Moreover, the appellant was just appearing before his court at the time when he was required to state his answer or to plead in such cause. From page 31 of the record, the appellant and its counsel appeared before the court for the first time on 23/7/07. It is interesting to reproduce what transpired in the court on that day presently:
“ON MONDAY, THE 23RD DAY OF JULY, 2007
Parties are present.
Defendant represented by Eteakamba Bassey Edet (Administration Officer).
Nse Williams Esq. for the Appellant.
Ibok Asangenghi Esq. for the Defendant.
Counsel for the Defendant: We have our intention to defend the action together with an affidavit. We filed it on the 20th July, 2007.
Counsel for the Plaintiff: We are not served.
COURT: With the consent of counsel, the case is adjourned to 6/8/07 for hearing.
(Sgd.) Ita G. Mbaba
Judge
23/7/07.”
As can be seen from the record, the court adjourned the case to the 6/8/07 for hearing. An action on the undefended list should be heard only on the date fixed for hearing. See Olubusola Stores vs. Standard Bank of Nig. Ltd. (1975) 4 SC 51. Surprisingly when the case came up for hearing on 6/8/07, the trial Judge proceeded, without much ado, to judgment. This is a travesty of justice, a complete denial of fair hearing and a brazen violation of the fundamental right of fair hearing of the appellant guaranteed under section 36(1) of the 1999 Constitution.From the foregoing, I am compelled to say that the summary proceedings of undefended list procedure have caused more problems to the courts than they were expected to cause. The problems stem from the fact that some of the trial courts are too ready to rush to judgment as soon as they see a suit placed on the undefended list. See Enye vs. Ogbu (supra) at page 427. That is not the essence of the law. There is merit in this appeal and I resolve the lone issue in favour of the appellant.
Accordingly, this appeal is hereby allowed. The judgment and orders of Mbaba J., delivered in Suit No. HU/UND.172/2007 on 6/8/07, be and are hereby set aside. The case is remitted to the Chief Judge of Akwa Ibom State for reassignment to any other Judge, for hearing and determination. Costs is assessed and fix at N10,000.00 in favour of the appellant.
Appeal allowed.
Other Citations: (2008)LCN/2946(CA)
