Alhaji Ibrahim Ahmad V. Sahab Enterprises Nigerial Limited & Ors (2016)
LawGlobal-Hub Lead Judgment Report
ISAIAH OLUFEMI AKEJU, J.C.A.
In suit No. K/173/2009 before the Kano State, High Court the Appellant was the 1st defendant while the 2nd and 3rd Respondents were the 2nd and 3rd defendants. The 1st Respondent in this appeal Sahab Enterprises Ltd. as the plaintiff had claimed through the writ of summons and statement of claim filed on 23/4/09 the following reliefs:-
1. A declaration that the property known as plot No,62, Hotoro, GRA, Nassarawa District, Kano is covered by Certificate of Occupancy No.LKN/RES/RC/82/06, which Certificate is valid and subsisting.
2. A declaration that the plaintiff is the holder of Certificate of Occupancy No. LKN/RES/RC/82/06.
3. A declaration that title to the property known as plot No, 62 Hotoro GRA. Nassarawa District, Kano resides solely in the plaintiff.
4. An order of mandamus directing the Directorate of Land Regional Planning to register the Deed of Assignment transferring legal title to the plaintiff.
5. An order of perpetual injunction restraining the 1st Defendant either by his servants, privies or whosoever from interfering with the property known as plot No, 62
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Hotoro GRA Nassarawa District, Kano.
6. A declaration that Certificate No, LKN/RES/RC/83/2002 in as much as it covers or purports to be in respect of plot No, 62 Hotoro RA, Nassarawa District Kano in the name of the 1st Defendant is null and void.
7. An account of rent collected over the property by the 1st Defendant from 1995 until this case is determined.
8. An order of specific performance directing the 3rd defendant to hand over to the plaintiff vacant possession of the property known as plot No. 62 Hotoro GRA. Nassarawa District, Kano, having sold the said property to her.
The Appellant as a defendant entered appearance on 10/7/09 through his Counsel, Nahabani Usman Esq., of Nahabani Usman & Co., but no statement of defence was filed on behalf of the Appellant by the learned Counsel who attends proceedings on two occasions between 10/7/09 and 20/7/11.
The suit was heard in the absence of the Appellant at the trial that started on 24/2/11 and was concluded on 22/3/11. In the judgment delivered on 21/7/11 by the High Court of Kano State all the reliefs sought by the 1st Respondent as plaintiff were granted. The Appellant
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thereafter applied to the High Court of Kano State for the order setting aside the judgment which application was refused by that Court consequent upon which the appellant commenced this appeal.
Thus by the motion on Notice dated 18th June, 2012 and filed on 19th June, 2012, the Appellant had Sought the following prayers:-
(a) AN ORDER setting aside all ORDERS, judgments, directions granted in favour of the Plaintiff/Respondents by this Court on the 21st day of October, 2017 in this matter.
(b) AN ORDER GRANTING LEAVE to the applicant to file his statement of defence to the action,
(c) AN ORDER RESTRAINING the 1st Respondent from tampering in any way with the subject of this suit.
(d) AN ORDER RESTRAINING the 1st Respondent from collecting rents or disturbing the tenant occupying the subject ? matter.
(e) Any other orders as this honourable Court deems fit in the circumstances.
?
In response to the affidavit of 8 paragraphs in support of the motion and the Exhibit A attached thereto, there was a Counter affidavit filed by the 1st defendant that prompted the further and better affidavit of 7 paragraphs by the applicant
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to which Exhibit 1 was attached. After considering the affidavit evidence of the parties and the written addresses of their learned Counsel, the High Court of Kano State, now called the trial Court refused the prayers of the applicant and dismissed the motion in the Ruling delivered on 31st January, 2013.
Aggrieved by this decision of the trial Court, the applicant now called the Appellant commenced the instant appeal by filing the Notice of appeal dated the 4th day of February, 2013 with four grounds of appeal, and in line with the Rules of this Court the Briefs of Argument were filed by the parties.
The Appellant’s Brief of Argument settled by Farouk Idris Umar Esq., filed on 30/6/14 while the 1st Respondent’s Brief filed on 5/9/14 was deemed properly filed on 13/10/15. It was settled by Bayo Funso Adaramola Esq.
The Appellant formulated the following issues for determination;
1. Whether having regard to the circumstances of this case, the Lower Court ought to have all its orders and directions as contained in its judgment given in default of defence set aside.
2. Whether a defendant is entitled to be heard if such a Defendant
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proposes a defence to the action against him and refusal by the lower Court to hear the Appellant in this matter particularly when there was his proposed statement of defence to the action.
3. Whether failure of the lower Court to effect service of hearing notices of all its proceedings on the parties including the Appellant is fatal to the decision of the Court and its jurisdiction to determine the matter.
According to the 1st Respondent, hereinafter called the Respondent, the issue for determination in this appeal is the lone issue which is whether the learned trial judge exercised his discretion by dismissing the application made pursuant to Orders 27 and 47 of Kano State High Court (Civil Procedure) Rules 1988 to set aside its judgment. The Respondent however argued the three issues formulated by the Appellant.
?The other Respondents did not file any Brief of Argument.
The Appellant’s Reply Brief to the 1st Respondent’s Brief filed on 6/1/16 deemed properly filed on 28/1/16. At the hearing of the appeal the Briefs of Argument were adopted and relied upon by the learned Counsel who respectively urged Court to allow or dismiss the appeal.<br< p=””
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This appeal will be considered and determined on the basis of the three issues formulated by the Appellant which I adopt for that purpose.
On the 1st issue, the learned Counsel for Appellant submitted that the Court that makes Orders and directions can set same aside but in doing so the Court must be guided by some considerations stated in FBN V. AKPAN (2012) All FWLR (Pt. 647) 744 which are;
1. Whether there has been undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the Judgment subsists.
2. The reason for the failure to appear at the hearing of the case.
3. Whether the party in whose favour the Judgment subsists would be prejudiced or embarrassed upon an order for rehearing of the suit being made so as to render such a course inequitable.
4. Whether the applicant’s conduct has been such as to make his application worthy of a sympathetic consideration.
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It was contended that the Appellant has satisfied all these conditions as deposed in the affidavit in support of his application that the reason for his absence at the hearing was lack of service of hearing notice. It was
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submitted that the Court has a duty to ensure that the parties are given the proper notice of hearing. UBA PLC V. EFFIONG (2012) All FWLR (Pt. 634) 172.
It was contended also that there has not been any unreasonable delay in bringing the application as the Appellant only became aware that the Court had given Judgment about 10 months thereafter and immediately, took appropriate steps to set aside the Judgment and all orders and directives contained therein. It was also contended that the Respondent will not be prejudiced if an order of rehearing of the suit is made having not invested on the property or effect any structural alteration thereof. The learned Counsel argued that the other requirements for setting aside of Judgment are predicated on proper service of hearing notice(s) on the applicant because any Judgment entered without proper service is a nullity and same is liable to be set aside on appeal; NYMP CO. PLC. V. ALL MOTOR (NIG.) PLC (2011) All FWLR (Pt. 606) 1225. It was argued that the process for service must be issued by the Court and must be served by the official of the Court whereby the reliance by the trial Court on Exhibits A- E at
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pages 170 – 174 of the record as constituting proper service was a misdirection.
On this issue the Respondent’s Counsel contended that the Judgment of the trial Court now in issue is not a default Judgment but a judgment on the merit and the case law or authority referred to the Appellant is not apposite, while the issue of non service of hearing notice is misconceived and not a reflection of the record of proceedings which shows that the learned trial judge noted that all defendants were served before the matter proceeded to hearing, and the Appellant has not appealed against that finding by the trial Court. The learned Counsel submitted that a trial Court is entitled to look into its record and make use of document or affidavit in it so as to reach a just decision; OKON V. OBI (2006) All FWLR (Pt. 328) 717; W.A.P.L.C. V. NIG. TOBACCO CO. LTD (1987) 2 NWLR (Pt. 56) 209; NUHU V. OGELE (2004) FWLR (Pt.193) 362.
It was contended that the Appellant who admitted in his affidavit that Exhibits A – E were collected by his Counsel’s office is estopped from turning around to deny knowledge of the hearing of the case. The learned Counsel submitted that once
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preliminaries of a case have been concluded such as service of writ, and entry of appearance, it is the duty of Counsel to keep abreast with the business of the Court; AFONJA COMMUNITY BANK NIG.. LTD. V. AKPAN (2003) FWLR (pt. 146) 909; AINA V. OBABI OLORUNKOSI (1988) 2 NWLR (pt. 22) 316.
The learned counsel contended that Exhibits A – E have fixed the Appellant with knowledge of the hearing dates and service of processes and the proper inference is that he was not interested in continuing with the case.
The entire application of the Appellant at the trial Court that led to this appeal, was for setting aside by that Court of the judgment, all orders, directives granted by that Court on 21/7/2011 in that suit as well as other prayers for other ancillary reliefs for leave to file Appellant’s statement of defence, and injunctions.
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Briefly stated, the contention, argument and submission of the learned Counsel for the Appellant on the three issues formulated in his brief of argument as well as in the Appellant’s Reply Brief filed on 6/1/16 but deemed filed on 28/1/16 and to which the 1st Respondent’s learned Counsel had responded in his own brief of
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argument are that the application before the trial Court for setting aside the Judgment of that Court delivered on 21/7/2011 ought to have been granted for the reasons that the necessary hearing notices were not properly issued and served on the applicant now Appellant and that this failure to properly serve hearing notice at the trial denied the Appellant his Constitutional right to fair hearing as he was not given the opportunity to state his own case which has rendered the Judgment a nullity and liable to be set aside even by that Court.
The facts relied upon in support of the application for setting aside at the trial Court are contained in the depositions in the affidavit in support of the application, the material part of which are in paragraph 3 (g), (h), (i), (j), (k) and (l) as follows:-
(g) That the case was fixed by this Court on 27/7/2009 or mention and that day the case was further adjourned to 5/10/2009 for yet further mention.
(h) That on 5/10/2009 the Court sat again and adjourned same to 19/10/2009 for yet further mention.
(i) That from that day no sufficient service or personal service was ever affected on the
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applicant.
(j) That likewise no any hearing notice was served on Mrs. Nabahani & Co.
(k) That Mrs Nabahani & Co. were waiting for the outcome of an application on notice filed by Dele Olariyeken & Co, Seeking for the transfer of this Court (Sic) to appropriate judicial division.
(l) That the applicant sometimes on 4th day of May 2012 was informed by the tenant occupying the property situate in No. 62 Hotoro GRA Nasarawa i.e. the subject matter of this suit that they should from now on pay the rent to a new landlord.”
The Respondent who was also a Respondent to the application filed a counter affidavit of 20 paragraphs and it was deposed in paragraphs 5,6,7 ,9, 11,13,14 and 17 thereof as follows:-
“5. That proper service was effected on the applicant through the Court Order that he be served by pasting on his last known address being the subject property.
6. That Counsel to the applicant filed a memorandum of appearance and appeared only once during the trial and never for once gave any reason for his absence in Court.
7. That paragraph 3 (f) is untrue because the Counsel to the applicant never dignified the Court
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with his presence in Court let alone inform the Court of his difficulties.
9. That paragraph 3 (i) and (j) of the affidavit in support are untrue and false, the Counsel to the applicant was served with notifications of all sittings by the direction of the Court until judgment, copies of all the notifications served on the Applicant?s Counsel are Exhibits A, B, C, D and E hereto, and receipt of all acknowledged.
11. That the defendant did not attend the Court even once from the commencement of the matter in 2009 until Judgment in October, 2011.
13. That this Honourable Court diligently demanded to sight the notifications served on the applicant before proceeding on each of the days the matter was heard.
14. That the applicant deliberately neglected to attend Court throughout the trial.
17. That this Court is already functus officio in this matter after Judgment was delivered.”
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In the further And Better Affidavit of the Applicant/Appellant, the Appellant’s Counsel did not deny the receipt of the letters marked as Exhibits A, B, C, D and E but stated that Counsel who received them did not inform the Chambers and they were not
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found in the case file.
It is quite apt and it is the Law that once it delivers its final Judgment in any cause or matter, the Court becomes functus officio as far as that matter is concerned and cannot reopen the case, except for the purpose of making necessary corrections.
See NIGERIAN ARMY V. MAJOR JACOB IYELA (2008) 18 NWLR (Pt-1118) 115; STERLING CIVIL ENGENEERING (NIG.) LTD. V. YAHAYA (2005) 11 NWLR (Pt. 935) 181.
It is however also well settled that a Court of record such as the trial High Court has the inherent power to set aside its Judgment or decisions under some circumstances which include;
(1) Where the Judgment has been obtained by fraud or deceit either in the Court or of one or more of the parties.
(2) Where the Judgment is a nullity.
(3) Where it is obvious that the Court was misled into giving the Judgment under the mistaken belief that the parties consented to it.
(4) Where the Judgment was given in the absence of jurisdiction.
(5) Where the proceedings adopted was such as to deprive the decision or Judgment of the character of a legitimate adjudication.
(6) Where there is fundamental irregularity.
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See TOMTEC (NIG) LTD. V. FHA (2009) 18 NWLR (Pt. 1173) 358; AGIRI V. OGUNDELE (2005) AII FWLR (Pt. 250) 81.
On the power of the Court to set aside a Judgment that is a nullity, the Supreme Court in approving the decision in GRAIG V. KANSEN (1943) KB 256, that a Judgment that is a nullity can be set aside ex debito justiciae held in the case of EKE V. OGBONDA (2007) All FWLR (Pt. 351) 1456 that if a Judgment of a Court is a nullity, it can be set aside without much ado. It was held further at page 1473 per Mahamud Mohammed JSC that “This principle of Law has been cited with approval in many decisions of this Court? In other words, such judgments or orders are rendered null and void by fundamental defect and can be set aside”. See SKEN CONSULT (NIG.) LTD. V. UKEY (1981) 1 SC 6; OKOYE V. NIGERIAN CONSTRUCTION AND FUNITURE CO. LTD. (1991) 6 NWLR (Pt. 199) 501.
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It is noted that the learned Counsel for the Appellant has described the judgment of the trial Court now sought to be set aside as a default judgment while the Respondent’s Counsel has argued per contra. A default judgment means a judgment obtained by a plaintiff in reliance on some omission
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on the part of the defendant in respect of something which he is directed to do by the rules. See UTC (NIG.) LTD. V. PAMOTEI (1982) 2 NWLR (Pt. 103) 244. It is a judgment given in default of appearances or pleadings against a defendant or a plaintiff in a cross action whose names appear as such in the record of the trial Court. See BELLO V. INEC (2010) 8 NWLR (Pt. 1196) 342, (2010) VOL. 3 (Pt. 111) MJSC 1.
In the instant case the facts on the record of appeal show that the Appellant as the 1st defendant at the trial Court was served with the originating processes by substituted means in compliance with the order of Court made at the proceedings of 6/7/09 at which the plaintiff’s motion exparte for that prayer was granted and the suit was adjourned to 27/7/09 for mention with the Court making order for service of hearing notice. On 27/7/09 the 1st defendant was represented by Nabahani Usman Esq., with Mr. Haruna Salihi as Counsel. The case was adjourned to 5/10/09 for mention. Again on 27/10/09 Nabahani Esq., of Counsel appeared for the 1st defendant, the Court heard the motion filed by the 3rd defendant seeking transfer of the suit to another or
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appropriate judicial division and Ruling thereon was adjourned to 4/11/09 “as agreed by the parties”. See page 33 of the record of appeal. The Ruling was delivered on 28/1/10 and the suit was adjourned to 24/2/10 for hearing. Upon the application of the plaintiff’s Counsel, the trial Court ordered that “The 1st and 2nd defendant (sic) are to be served with hearing notices accordingly”. See page 37 of the record of appeal. At the proceedings of 6/10/10, the Court was informed that the 1st and 2nd defendants were put on notice but they failed to appear in Court. The case was adjourned to 14/12/10, for hearing. Thus the 1st defendant now Appellant did not only fail to file a statement of defence but also failed to appear in Court after the initial stages of the proceedings and after filing memorandum of appearance. In the circumstances that the defendants failed to file any defence the trial Court heard the plaintiff’s witnesses and adjourned for judgment that was fixed for 21/4/11 but eventually delivered on 31/7/11.
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Notwithstanding the failure of the defendants to file statement of defence, the learned trial judge appraised, assessed and evaluated the
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evidence of the witnesses in the case before finding in favour of the plaintiff. The trial Court held that the plaintiff proved his case and consequently granted the reliefs sought.
The judgment now sought to be set aside is based on a product of assessment and evaluation of evidence of witnesses and the determination of the entitlement of the plaintiff to the reliefs sought. In my view it qualifies as a judgment on the merit rather than a default judgment having determined the rights of the parties in respect of the subject-matter of the action on basis of the evidence, See UTC (NIG,) LTD. V. PAMOTEI (Supra); PAUL CARDOSO V. JOHN BANKOLE DANIEL (1986) 2 NWLR (Pt. 20) 1.
The Appellant has contended with vigour that he was not properly served with hearing notices by the Court and that for this reason the trial or hearing conducted by the Court amounted to nullity. I have gone into the records of appeal which shows that after the service of the originating processes, the learned Counsel for the Appellant appeared in Court up to a time that he stopped appearing without giving any reason to Court. The learned trial judge therefore correctly captured the
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scenario when he held in his judgment at page 240 of the record that “The defendants were all served. The Counsel to the 1st defendant appeared and later stopped appearing without giving any reason”.
In respect of the application for setting aside of the trial Court’s Judgment which led to this appeal the learned trial judge also held at page 255 of the record of appeal that; “In the instant case, the 1st Defendant/Applicant was served with all the processes of this Court in respect of the matter. In fact he was represented by one Nabahani Usman appearing with Mr. Haruna Saleh on the 27/7/09.
Nabahani Usman also represented the 1st Defendant/Applicant on the 27/10/09, From then on, the 1st defendant refused, failed and neglected to appear up to the day of the judgment was (sic) delivered on the 27/7/11. The 1st defendant/Applicant also failed, refused and neglected to file any defence to the action”. This finding of the trial Court correctly shows what transpired in the Court as borne out by the record which I had earlier set out in this judgment.
Having had full knowledge of the case from its inception, the appellant and/or his legal
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practitioner had a duty to keep themselves informed of the situation of the case and cannot be correct to claim ignorance of the date of the case. See AINA V. OBABIOLORUNKOSI (1986) 2 NWLR (Pt. 22) 316. Thus even before the letters attached to the Respondent’s counter affidavit as Exhibits A – E which notified the Appellant of the different dates, the Appellant had been in the case but subsequently decided to stay away while the learned Counsel who had initially appeared also refused to appear. The Appellant who had, or was fixed with the knowledge of the hearing of the case should have no one else to blame but himself for his failure to attend the Court.
The argument of the learned Counsel for the Appellant is that the trial at the High Court and the judgment thereon amounted to nullity for the reason of the breach of Appellant’s right to fair hearing due to failure to properly serve him with notice of hearing.
There is no doubt that the right to fair hearing being a right guaranteed to every citizen in the determination of his right and entitlements by virtue of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as
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amended) is fundamental and a breach thereof in trials or proceedings in Court vitiates the trial and renders it null and void. The right to fair hearing guaranteed by the Constitution is founded upon the rules of natural justice of audi alteram partem meaning that the other party be heard, and the nemo judex in causa sua, that no one should be a judge in his own cause. Fair hearing postulates that parties appearing in a matter should be heard or given opportunity of being heard. See A.G. RIVERS STATE V. UDE (2006) 17 NWLR (Pt. 1008) 436. It has been held in MAGAJI V. NIGERIAN ARMY (2008) 8 NWLR (Pt. 1089) 338, that fair hearing is a principle that is based on the facts of the particular case before the Court.
Indeed the Supreme Court held in the case of INOGHA MFA & SONS V. MFA INONGHA (2014) 1 LPELR SC. 305/12006 that it is not the business of the Court to chase or pursue a recalcitrant party so as to hear him as the only thing the Court has to do is to create an enabling environment for the party to present his case and a party who refuses to take advantage of the fair hearing environment cannot complain of denial of fair hearing.
In the
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instant case where the Appellant was served with originating processes in the suit filed memorandum of Appearance but refused to file a defence, attended the proceedings of the trial Court on some occasions but stayed away from Court even when he received notifications which he and Counsel ignored, was in my view laying an ambush for the Court under the guise of breach of his fundamental right to fair hearing.
I am of the view that it was the Appellant that refused to utilise the fair hearing environment created for him by the trial Court and I so hold.
In the final analysis I have to state that I have considered the three issues formulated in this appeal and I resolve them against the Appellant. The appeal therefore fails and it is dismissed for want of merit. I uphold the decision of the trial Court contained in the Ruling delivered on 31st January, 2013 in suit No. K/173/09. I award costs of N30,000.00 in favour of the 1st Respondent only.
Other Citations: (2016)LCN/8745(CA)
