Alhaji Adisa Saka Ahmed V. Jimoh Adeyemi (2006)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Respondent as Plaintiff at the Abeokuta High Court of Ogun State, instituted the action that culminated in this appeal by filing an Undefended Writ of Summons supported by a 14-paragraph Affidavit and an Exhibit – “A”.

The case for the Respondent is that the Appellant who was his friend approached him sometime in 1988 to stand surety for him in respect of a loan/overdraft facility of N30, 000.00 he proposed to take from United Bank for Africa Ltd (UBA). The Respondent agreed to surrender the deed of title to his landed property at Ijeje, Abeokuta, on which the Bank subsequently prepared a legal mortgage. Sometime in 1992, one Mr. Aladeika of UBA complained to the Respondent about the Appellant’s failure to service the loan and warned him that his property might be put on auction for sale to satisfy the debt owed by the Appellant. The Respondent informed the Appellant about this and later that year, the Bank got a lawyer to write him that as a result of the Appellant’s failure to settle his indebtedness, which had risen to almost N450, 000.00, his landed property mortgaged to the Bank had been passed on to the Auctioneer for sale. The said property was put up for sale sometime in 1993, but after negotiations, the Bank reduced the debt to N300, 372.00, which the Respondent liquidated finally in May 1999.

The Respondent demanded the refund of the said sum from the Appellant to no avail, and believing that the Appellant had no defence to the suit, he filed the Undefended Writ of Summons at the lower Court, claiming as follows –

“The sum of N300,372, 00 being refund of the Defendant’s indebtedness to the United Bank for Africa PLC on his Account No. 601-03301-9 paid by the Plaintiff to forestall the sale of the Plaintiff’s property at Abeokuta, which was pledged and mortgaged as security for the facility granted to the Defendant, at the request of the Defendant, by the United Bank for Africa PLC, Abeokuta in 1988.

The Plaintiff also claims interest on the said sum at the rate of 21% per annum from 14th May, 1999 until Judgment and thereafter at the rate of 10% per annum until final liquidation of the whole debt….”.

The Appellant however filed a Motion on Notice supported by an 11-paragraph Affidavit praying the lower Court for an order granting him leave to defend the suit and “removing the suit from the Undefended List to the Ordinary or General Cause List”. He averred in paragraph 5 of his Affidavit that “contrary to the impression created or framed by” the Respondent, he had “a thorough defence to his suit”, and further averred in paragraph 6 –

“That contrary to the averment of the Plaintiff in paragraphs 1 to 9 of his Affidavit, the transaction that gave rise to his action started as follows –

(a) Sometime in 1988, the Plaintiff approached me for a loan of which I informed him that I had no sufficient money I could lend him at the time.

(b) The Plaintiff thereafter asked me whether I had a current account in a Bank with which I could assist him in securing a loan, and I answered in the affirmative.

(c) The Plaintiff then asked me to consult my Bank on the possibility of securing a loan from them.

(d) In line with the Plaintiff’s request, I consulted my Bank, UBA PLC, Onikolobo Road, Abeokuta, wherein I was given details of the procedure and security required which I conveyed to the Plaintiff.

(e) The Plaintiff informed me that as for security, there was no problem, since he had a property he can use as mortgage.

(f) When the Plaintiff and I reached the Bank, we were told that since the Plaintiff had no account with them, he could not secure the loan.

(g) It was at the Bank we were told that if we really needed the money, I should apply for the loan, whilst the Plaintiff should serve as a Guarantor with his property and Title Documents.

(h) The Bank Officials informed me that the Plaintiff would have to submit original Title Documents of the property to the Bank.

(i) At that stage, I wanted to withdrawn (sic) and expected the Plaintiff to hesitate, but instead, he stated that we would go ahead.

(j) Upon our acceptance of the conditions aforesaid, Bank’s Documents were given to us for our execution, which we did and the Plaintiff’s title documents were accordingly obtained in line with mortgage transaction in furtherance of the loan.

(k) When the money was eventually paid in December 1988, the Plaintiff informed me that he did not need the entire N20, 000.00 to N30,000.00 any longer, but that he only needed as at that moment, only N13, 000.00, which he collected in cheques from me as follows. – –

(l) Sometime in February 1989, I informed the Plaintiff of the necessity of paying the loan, but he told me there was no money, but that he would pay as soon as he had money.

(m)Sometime in April 1989, the Plaintiff asked me to still give him N5, 000 from the loan, which I gave him.

(n) When I asked him for the N5,000 so that I could return it to the Bank, he gave me Habib Bank Cheque No. 045534 dated 5/5/89 covering N5, 586 (the N5, 000 plus interest).

(o) When I presented the cheque for liquidation of the loan, it was returned at the clearing, as it was stated there was no money in that Account.

Photostat copy of the returned cheque is marked Ekh. ‘A’.

(p) In 1989, I personally paid into the account in liquidation of my own part of the loan, the sum of N7, 000.00.

The Appellant further averred in paragraphs 7 (a) – (i) of the same Affidavit that after paying N7, 000.00 he warned the Respondent of the consequence of failure to liquidate the loan and accrued interest, particularly on his mortgaged property; that he received a number of correspondence from UBA, (Exhibits B, C, & D) and wrote a letter (Exhibit E) to the Respondent; that sometime in 1999, different persons came to ask him what transpired between them as the Respondent was threatening his life saying that if anything happened to his house, the Appellant’s life will go for it; that upon receiving these messages, he approached one Tajudeen Okusokan Esq., a Solicitor in Toye Coker & Co., who wrote a letter entitled “Threat to Life” dated 12/5/2000 to the Respondent (attached as Exhibit F); and that it was upon receipt of the said Exhibit F that the Respondent instituted this action.

He further averred as follows in paragraph 8 & 9 of the same Affidavit –

8. That I am informed by my counsel, Femi Jolaoso, Esq., and I verily believe him that from the facts stated in paragraphs 6 and 7 thereof, I am not liable in any form to the Plaintiff for the payment of whatever sum he might have paid into the account as Redemption of the Mortgage.
9. That my Counsel informed me and I verily believe him as follows.

(a) That I am not liable to the Plaintiff for the sum of N300, 372.00 being claimed by the Plaintiff in his Writ of Summons.

(b) That I have a good and arguable defence to the Suit.

(c) Whatever payment the Plaintiff must have made to the (blank)

(d) The substantial payment made by the Plaintiff to the UBA PLC if any, became substantial due to the Plaintiff’s failure to heed to initial warnings given by the Defendant to him. That is, as a result of Plaintiff’s iniquity, negligence or inaction.

The learned trial Judge, Sodeke, J., granted the Appellant’s Application for leave to defend the suit on the 10th of October 2000 and further ordered –

“Suit is transferred to the general cause list. Plaintiff should file his Statement of Claim and serve on the Defendant within 30 days from now and the Defendant should file and serve Statement of Defence on the Plaintiff within 30 days after he has been served with Statement of Claim. Case is adjourned to 15/1/2001”.

The Respondent’s Statement of Claim was filed out of time on the 14th of December 2000, and by an order of Court was deemed filed on the 8th of February, 2001. Upon the Appellant’s failure to file his Statement of Defence, the Respondent filed a Motion on Notice dated 20th March, 2001 praying the lower Court for an order granting Judgment in his favour. The lower Court adjourned the Application to the 7th of May, 2001 for mention. On that day, the Appellant was absent and was not represented. The lower Court noted-

“It is surprising that the Defendant/Respondent has not been coming to Court since the inception of this case. However, the Court will once again lean over backward and adjourn this case for the last time. It is adjourned to 28/5/2001 for definite hearing”. (Italics mine)

The Court did not sit on 28th of May, 2001 and the matter was adjourned to the 6th of June 2001, on which day the Respondent moved the application in the absence of the Appellant. The lower Court entered Judgment as follows –

“Having been satisfied that the Motion on Notice to enter Judgment in favour of the Plaintiff/Applicant was properly filed and served on the Defendant/Respondent’s counsel on the 11th of March 2001, and the Defendant/Respondent has not indicated any willingness to defend the application, Judgment is hereby entered in favour Plaintiff/Applicant as prayed. Costs. N1, 000 costs to the Plaintiff/Applicant”.

On the 17th of July, 2001, the Appellant filed an application supported by a 15-paragraph Affidavit praying the lower Court for an order setting aside the Judgment obtained in default of pleading. The Respondent filed an 11-paragraph Counter-Affidavit and in its Ruling, the lower Court held as follows-

“This case or application is simple. There is no magic that counsel can do for the Defendant/Applicant. O. 37 r. 9 High Court Rules wants application to set aside Judgment in default to be made within 6 days.

The Judgment was given on 6/6/2001 while the Application to set aside was filed on 17/7/2001. Clearly this is more than 6 days after Judgment. This application is therefore incompetent and it is herewith dismissed. There shall be N500.00 costs in favour of Plaintiff”.

On the 30th of January, 2002, the Appellant filed another Application supported by a 21-paragraph Affidavit praying the lower Court for an extension of time within which to bring an application to set aside the default Judgment delivered on the 6th of June, 2001, and an order setting aside the said Judgment. The Respondent again filed an 11-paragraph Counter-Affidavit and in its Ruling delivered on the 11th of April, 2002, the lower Court held –

“The Judgment was given on 6/6/2001 while the Application to set aside is made on 30/1/2002. No reason was given for the delay in bringing the application. Further the Defendant did not give or adduce any triable defence either by his Affidavit or by filing intended defence. It is clear that this present application is an abuse of process of this Court in that the previous application was argued by Defendant on 22/1/2002 and dismissed. The only remedy open to Defendant was an appeal and this he did not do. The Application dated 30/1/2002 and argued by Mr. Jolaoso on behalf of Defendant is herewith dismissed as it lacks merit and is an abuse of the process of this Court………… There shall be N1, 000.00 in favour of Plaintiff”.

Dissatisfied, the Appellant has appealed to this Court with a Notice of Appeal containing four Grounds of Appeal. The said Grounds without Particulars are-

A. The Trial Judge erred in law in treating a matter which ought to be heard by receipt of oral evidence or testimony as one that can be heard summarily.

B. The Trial Court erred in law in hearing the matter summarily when the Suit was not ripe for hearing as pleadings have not been completed or closed.

C. The Trial Court erred in law in trying the matter summarily and this amounts to deprivation of the Defendant’s Constitutional Right to Fair Hearing guaranteed the Appellant by Section 36 of 1999 Constitution of Nigeria.

D. The Trial Court erred in law in treating a date fixed for mention as hearing date, when he heard the Plaintiff/Respondent’s Application

– “Motion on Notice for Summary or Default Judgment”.

In line with the Rules of this Court, Briefs of Argument were duly filed by the Parties, and in the Appellant’s brief prepared by Femi Jolaoso Chambers, the following Issues were formulated as arising for determination in this appeal-

i. Whether from the endorsement of claims on the Writ of Summons and the affidavit in support, as well as Affidavit in support of Notice to Defend together with annexed Exhibits, the Plaintiff’s claim fall under an action that can properly be determined without hearing oral evidence.

ii. Whether the suit was ripe for hearing when pleadings have not been completed or closed.

iii. Whether the hearing of the suit in the manner aforesaid in the absence of the Defendant/Appellant constituted a deprivation of the Defendant/Appellant’s Constitutional Right to Fair Hearing guaranteed by S. 36 of the 1999 Constitution of Nigeria.

iv. Whether the trial Judge was right to have heard the Suit on the date it was fixed for mention, when no new date of hearing had been fixed by the trial Judge.

v. Whether from the circumstances arising from the four Grounds of Appeal herein the Judgment of the trial Judge ought to be set aside and re-trial on the merit can properly be ordered.

It was however submitted in the Respondent’s brief settled by A. Adenekan, Esq., that the Issues for Determination in this appeal are as follows –

a) Whether the lower Court treated the case summarily – Ground 1.

b) Whether the lower Court complied with the High Court (Civil Procedure) Rules on pleadings – Ground 2.

c) Whether the lower Court did not give the Appellant sufficient opportunities to file his Statement of Defence – Ground 3.

d) Whether the Judgment of the lower Court dated 6th June 2001 was invalid – Ground 2.

The Appellant filed a Reply brief wherein it was submitted that it is settled law that Issues must flow from or arise from the Appellant’s Grounds of Appeal, citing Idika & ors V. Erisi & ors (1988) 2 NWLR (pt. 78) 563 at 579, Eimskip Ltd. Exquisite Industries Nig. Ltd. (2003) 1 SCNJ 317, Archbishop Peter Y. Jatau v. Alhaji Monsur Ahmed (2003) 1SCNJ 382.

It is the Appellant’s contention that a thorough perusal of his Grounds of Appeal alongside the 4 Issues formulated by the Respondent shows clearly that none of the Issues arose from or was distilled from the Grounds of Appeal, and this Court was urged to discountenance them, citing Kokoroowo V. Lagos State (2001) S SCNJ 203 at 208, Ngene V. Igbo (2000) 2 SCNJ 136, Adah V. Adah (2001) 2 SCNJ 90 at 97, Owhonisa V. Ekpechi (2003) 9 SCNJ 1 at 20, Igbinoba V. Igbinoba (2004) All FWLR (pt 196) 864 at 873, & Ibrahim V. Ojomo (2004) All FWLR (pt. 199) 1285 at 1296. It was further submitted, citing Odukwe V. Ogunbiyi (1998) 6 SCNJ 107 at 113, Ibrahim V. Ojomo (supra), & Nwosu V. Imo State Environmental Sanitation Authority (1990) 2 NWLR (pt. 135) 688 at 714, that it is settled law that Issues for Determination must of necessity be Issues which can lead to an appeal in favour of the Appellant, but in this case, that none of the Issues formulated by the Respondent can lead to a complete determination of the appeal, and this Court was urged to disregard them and strike them out.

I do agree that the Issues formulated by the Respondent are rather vague and inelegantly drafted, but the Appellant, in my view, is not in a position to point fingers at the Respondent, because he was also wrong to formulate 5 Issues from 4 Grounds of Appeal. As the Supreme Court and this Court have pointed out times without number, it is outside the contemplation of the law and therefore bad practice for there to be more Issues for Determination than Grounds of appeal – see Adedipe V. Theophilus (2005) 16 NWLR (pt. 951) 250; Bossa V. Julius Berger Plc (2005) 15 NWLR (pt. 948) 409 & M.B.N. Plc V. Nwobodo (2005) 14 NWLR (pt. 945) 379 SC. It is surprising that counsel still make the same mistake, and this elementary principle has to be reiterated time and time again. Be that as it may, the Appellant cannot be penalized for the mistake of his counsel, and in my view this appeal can easily be determined on a narrow compass – one core Issue distillable from the complaints in the Grounds of Appeal, that is – whether the lower Court was right to enter a default Judgment against the Appellant in his absence.

The main thrust of the Appellant’s submissions is that notwithstanding the way and manner the Respondent’s claims are endorsed on the Writ of Summons, the case does not fall under and cannot properly be categorized as a “Liquidated Demand” but “Unliquidated Demand”, citing Umunna V. Okwuraiwe (1978) 6-7 SC 1, Olurotimi V. Ige (1993) 10 SCNJ 1, I. B. C. V. Iwueke (1995) 1 NWLR (pt. 372) 488, & Dr. Oladipo Maja V. Mr. Costa Samouris (2002) 3 SCN] 29 where Iguh, JSC concluded at 48 –

“… a Court is not entitled to enter summary or default Judgment on a claim based on relief for payment of unliquidated pecuniary damages without taking evidence for the assessment of the amount of damages that may be proved as such a claim must be established by credible evidence. This is because it is not enough for the Court to simply award damages in an unliquidated pecuniary damages claim without giving any reason as to how it arrived at what in its opinion amounted to reasonable damages”. (Underlining his)

It is the Appellant’s contention that the amount that gave rise to this action was the N30, 000.00 obtained from UBA Abeokuta, and the lower Court ought to know that in such a matter, the opinion of the Officials of the said bank became not only expedient but imperative as to the calculation of the amount from N30, 000 to the alleged N300, 372.00 paid by the Respondent.

This is more so, as the Appellant stated in his Affidavit that he had repaid N7,000 out of the N30, 000 facility, therefore the quantification of sums became compulsory, as also the quantification of interests being sought in Claims (a) & (b) as endorsed on the Writ of Summons. It was further submitted that there is no proof of payment whatsoever of the said sum of N300, 372.00 to the Bank, as to justify the claim being categorized as “Liquidated money, or Damage”, hence, oral evidence or testimonies of the parties, their witnesses and Bank Officials becomes indispensable or a must, before Judgment can be delivered. The Appellant therefore argued that Judgment in this case cannot be obtained summarily, or in default of defence, without obtaining oral evidence or testimony, and the Judgment is liable to be quashed or set aside in line with the decision of the Supreme Court in Maja V. Samouris (supra).

It was further argued that where a Defendant is given ample opportunity to file his Defence, and he fails to do so, the only option open to the Plaintiff is to apply that the suit be entered for hearing, and for his counsel to put him and his witnesses into the witness box in proof of the Plaintiff’s claim, but the trial Court did not follow this indispensable procedure before giving its summary Judgment on the 6th of June 2001, and it is liable to be set aside.

The Respondent however argued that the lower Court did not treat the case summarily as contended by the Appellant, and submitted that the Appellant misconstrued the case because the Judgment was given in default of filing a Statement of Defence and so it was not a case of the lower Court hearing the suit when pleadings had not been completed or closed. It was further submitted that it was only the Statement of Claim that had been filed, and the Judgment of the lower Court granted on 6th June, 2001 was given in accordance with the High Court (Civil Procedure) Rules, and with the decision of the Supreme Court in Franchal V. Arab Bank 2SCNQR 1035 – 1065.

Before I address the merit or otherwise of the arguments canvassed, I will need to put this case in its proper perspective by clearing some of the misconceptions clouding up the waters, so to speak. To start with, a summary judgment is not the same as a default judgment, which is a Judgment rendered in consequence of the non-appearance of the Defendant.

To state it clearly, a default judgment is one entered upon the failure of a party to appear or plead at the appointed time – see Akinriboya V. Akinsole (1998) 3 NWLR (pt. 540) 101. Such a Judgment, based solely on default of pleadings or non-compliance with the rules of procedure, is not one on the merits and can, on good grounds being shown, be set aside by the Court upon a proper application by the Defendant – see Adeloye V. Olona Motors (Nig.) Ltd. (2002) 8 NWLR(pt. 769) 445, & Malgwi V. Gadazama (2000) 11 NWLR (pt. 678) 258. A summary Judgment on the other hand is one given in favour of a Plaintiff without a plenary trial of the action.

Although not preceded by a trial, a summary Judgment is one on the merits. As Nwadialo explained in Civil Procedure in Nigeria: 2nd Ed., this is because a summary Judgment is based on want of defence to the Plaintiff/s claim by the Defendant, and a full trial of the action cannot alter this situation. A summary Judgment therefore, unlike default Judgment, cannot be set aside by the Court that granted it or any Court. Only on appeal can this be done.

There are different summary Judgment procedures provided for in the High Court Rules, and this includes summary Judgment where a suit is entered in Undefended List under Order 23 of the Ogun State High Court (Civil Procedure) Rules applicable to this case, initially filed in the Undefended List.

A claim under the undefended list is by its very nature an action for a liquidated sum, which is an amount previously agreed on by the parties, or which can be precisely determined or ascertained from their terms of agreement, and it is designed to enable a Plaintiff obtain summary Judgment without necessarily proceeding to trial – see Abdulahi V. Buhari (2004) 17 NWLR (pt 902) 278; Dala Air Services V. Sudan Airways (2005) 3 NWLR (pt. 912) 394; & Dalko V. U.B.N. Plc. (2004) 4 NWLR (pt.862) 123. If the Defendant challenges the claim, the rules of Court provide that he delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit. The Court may on the basis of the affidavit by him, grant the Defendant leave to defend on such terms as it thinks fit and remove the action from the undefended list to the general cause list, order pleadings if it thinks fit or proceed to hear the case without pleadings – see Order 23 Rules 3 & 4, & Dalko V. U.B.N. (supra).

For emphasis I say again – where leave to defend is given, the action is removed from the “Undefended List” and placed on the “Ordinary Cause List”.

This means that the move initiated by the Plaintiff to obtain summary Judgment under the “Undefended List” procedure failed and consequently that the matter has to be tried in the normal way – see Ndukwe V. Domsey Int. Sales Corp. (1991) 7 NWLR (pt 206) 680. The Court may then order pleadings to be filed by the parties, or may proceed to hearing the suit without further pleadings.

In this case, the lower Court granted the Appellant leave to defend the action filed by the Respondent in the Undefended List; it transferred the action to the General Cause List on the 10th of October, 2001; and ordered pleadings to be filed by the parties. The Respondent’s Statement of Claim was deemed filed on the 8th of February, 2001. On the 20th of March, 2001, the Respondent filed his Application for Judgment brought pursuant to Order 27 Rule 2 of the Ogun State High Court Rules, which reads as follows –

“If the Plaintiff’s claim be only for a debt or liquidated demand, and the Defendant does not, within the time allowed by these Rules or an order of Court or a Judge in Chambers for that purpose, file a defence, the Plaintiff may, at the expiration of such time, apply for final Judgment for the amount claimed, with costs”. (Italics mine)

No doubt, the Rules of Court allow the Respondent to apply for Judgment in default or failure of the Appellant to file his pleading but the question in this appeal is whether the lower Court was right to grant the said Application, because the provisions of Order 27 Rule 2 of the Ogun State High Court Rules applies only to claims for “a debt or liquidated demand”, the same requirement for claims in the Undefended List procedure under Order 23, but this was not a claim under the Undefended List, it had been transferred to the Ordinary Cause List, where the normal rules apply. In such cases, there is a distinction in dealing with a Judgment obtained in default of pleadings, which, is governed by Order 27 Rule 10 of the Ogun State High Court Rules, and a Judgment obtained in default of appearance at the trial of the suit, which is governed by Order 37 Rule 9 of the same Rules. In the case of the former, the Judgment may be set aside by the Court upon a proper application by the Defendant; and there is no time limit for filing such application. In the case of the latter, the Judgment may be set aside by the Court upon a proper application filed within 6 days of the date of the Judgment.

Was the Judgment in this case a Judgment obtained in default of pleadings or a Judgment obtained in default of appearance? There is no clear cut answer.

The Respondent averred in paragraphs 7 – 8 of his supporting affidavit that he checked at the Registry and up till the time he filed his papers, the Appellant had not filed his Statement of Defence; and that he honestly believed that the Appellant has no defence to the action. In the Judgment delivered on the 6th of June 2001, the lower Court entered Judgment for the Respondent because the Appellant had “not indicated any willingness to defend the Application”, and in its Ruling of the 22nd of January 2002, held –

“This case or application is simple. There is no magic that counsel can do for the Defendant/Applicant. O. 37 r. 9 High Court Rules wants application to set aside Judgment in default to be made within 6 days.

The Judgment was given on 6/5/2001 while the Application to set aside was filed on 17/7/2001. Clearly this is more than 6 days after Judgment. This application is therefore incompetent and it is herewith dismissed. (Italics mine)

The Appellant’s counsel did not need any magic, the applicable Rules of Court were in the Appellant’s favour and it is the lower Court that failed to see it.

The Respondent’s application for Judgment was brought pursuant to Order 27 of the Ogun State High Court Rules, wherein he prayed as follows for –

“An Order granting Judgment in favour of the Plaintiff/Applicant as per paragraph 19 of his Statement of Claim dated 14th December 2000”.

The said paragraph 19 of the Statement of Claim reads as follows –

“Whereof the Plaintiff hereby claims from the Defendant –

a) A sum of N300, 372, 00 being refund of the Defendant’s indebtedness to the United Bank for Africa., (now PLC) on his A/C No. 601-03301-9 paid by the Plaintiff to forestall the sale of the Plaintiff’s property at Abeokuta, which was mortgaged as security for loan overdraft facility granted to the Defendant, at the request of the Defendant, by the United Bank for Africa Ltd., Abeokuta Branch in 1988.

b) Interest on the said N300, 372, 00 at the rate of 21 percent per annum from 14th May, 1999 until Judgment and thereafter at the rate of 10 percent per annum until final liquidation of the whole debt”.

The lower Court entered Judgment in favour of the Respondent “as prayed”; a Judgment obviously obtained in default of pleadings, which by Order 27 Rule 10 of the High Court Rules may be set aside by the Court upon a proper application by the Appellant, and with no time limit for filing such application.

So as not to over flog the issue, I must quickly say that the Appellant is right.

A claim for interest does not fall under and cannot be categorized as liquidated demand”, which is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic calculation without any other or further investigation – see Maja V. Samouris (supra). Payment of interest on a debt must be strictly proved by evidence. In other words, a trial Court will not infer payment of interest unless it is established by evidence – see J.S.R. Co. Ltd. V. Bernestieli (Nig.) Ltd. (1995) 8 NWLR (pt 412) 201; & Ekerete V. UBA PLC (2005) 9 NWLR (pt. 930) 401.

Be that as it may, what will determine this appeal beyond any question is the issue of the Appellant’s right to fair hearing, which I agree was violated.

There is nowhere in the record that the lower Court made any orders that the Appellant or his counsel be served with hearing notices, and none to indicate that the Appellant or his counsel were actually served with hearing notice before the Application for Judgment was heard and granted in the absence of the Appellant. What is even more damning is that the Respondent’s Application for Judgment is dated 20th March, 2001 and filed that same day, yet, the lower Court entered Judgment against the Appellant in his absence because he was satisfied that the Motion on Notice to enter Judgment in favour of the Respondent “was properly filed and served on the Respondent’s counsel on the 11th of March, 2001”. How can that be? Without any magic, using the lower Court’s words, how can an application yet un-filed, be served on the Appellant a clear eight days before it was eventually filed on the 20th of March 2001? What manner of service is that? Not a proper one, obviously.

The law is well settled that any failure to serve a party entitled to notice of proceedings is a fundamental defect, which goes to the root of the competence or jurisdiction of the Court to deal with the matter. In other words, where the failure of a party to appear in Court is due to the failure to serve him a hearing notice, any Judgment given in that circumstances will be one given without jurisdiction and is liable to be set aside on appeal – see Emerah & Sons V. Dunu (1998) 9 NWLR (pt. 564) 86.

In this case, the Appellant was absent on the 7th of May, 2001, and though the lower Court said it would bend over backward and adjourn the case for the last time, it did not make any order for hearing notice. On the 28th of May 2001, the Court did not sit and the Application was adjourned to the 6th of June, 2001 by the Registrar, which made it imperative that the Appellant be served with hearing notice – see Jonason Triangle Ltd. V. C. M. & Partners ltd. (1999) 1 NWLR (pt. 588) 555, where the Court held that the need for hearing notice to be served becomes necessary if the case was not adjourned in the open Court in the presence of the Defendant. See also Agene V. Katseen (1998) 3 NWLR (pt. 543) 560 where the Court observed-

“……The record of proceedings show that when the matter came up on the 13/2/92 and it was observed that the Court did not sit on 11/12/91, it is the duty of the Court to order a fresh hearing notice to be issued on the Defendants/Applicants and the matter adjourned to another day and if on that day, it was found that the Appellants were duly served to appear in Court on that day and that they failed to do so, the trial Court would then proceed to hear the matter… If the learned trial Judge had directed his mind to these gaps that occurred between the date of service on the Appellants and the hearing dates, obviously he would have caused hearing notice to be issued on the Appellants before hearing the case. Further; if he had directed his mind to this when the motion to set aside the Judgment came up before him, he would surely set aside the Judgment and hear the matter on the merits as the trial that he has conducted is a nullity.”

In this case, the Appellant was clearly not aware of the hearing date, and the Judgment of the lower Court delivered on the 6th of June, 2001 is a nullity, and it is so declared. The end result is that the appeal succeeds and is therefore allowed. The Judgment of the lower Court delivered on the 6th of June, 2001 is hereby set aside and the case is remitted to the Abeokuta High Court for re-trial before another Judge.

There will be no order as to costs.

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Other Citations: (2006)LCN/2004(CA)