Bank of the North V. Mr. Abdulhakeem Abiola (2006)
LawGlobal-Hub Lead Judgment Report
NGWUTA, J.C.A.
In a motion on notice dated 22/3/2005 and filed on 23/3/2005 and brought pursuant to section 18 of the Court of Appeal Act and S. 6(6)b of the 1999 Constitution the appellant/applicant prayed the court for the following reliefs:
“(i) An Order of the court staying execution of the judgment that was delivered in this suit by the Akure High Court 8 on January 31st, 2005 pending the determination of the appeal of the appellant against the judgment by the Court of Appeal, Benin.
(ii) An Order of this court setting aside the writ of execution that was issued by the Akure High Court 8 and upon which the goods of the appellant were attached by the sheriff of the Akure High Court on March 15th 2005.
(iii) An Order of this court directing the sheriff of the Akure High Court to release the goods of the appellant that were attached on March 15th, 2005 to the appellant.”
The application was founded on the following grounds:
“(1) The appellant filed notice of appeal and application for stay of execution of the judgment but no hearing notice was issued to the appellant or its counsel that application for stay of execution would be taken on March 15th, 2005 and it was struck out by the court on March 15th, 2005.
(2) The sheriff of Akure High Court levied execution on the goods of the appellant on March 15th, 2005 the same day that the application of the appellant for stay of execution was struck out and without any hearing notice issued to the appellant or its counsel that the application would be heard.
(3) The sheriff of the Akure High Court attached the goods of the appellant within the period of 15 days that the appellant can file application for stay of execution at the Court of Appeal after its application for stay of execution has been struck out by the High Court 8 Akure.
(4) The procedure that was adopted by the Akure High Court is in violation of section 36(1) of the 1999 Constitution and Order 3 rule 3(3) of the Court of Appeal Rules”
In support of the application is a 24-paragraph affidavit. There is also a further affidavit of 14 paragraphs and another one of 13 paragraphs. The respondent filed a 25 paragraph counter-affidavit.
In view of the fact that the motion is highly contentious, learned counsels for the parties were directed to file written addresses and each complied. At the hearing of the application, learned counsel for the applicant adopted and relied on his written submission dated 14/11/05 and filed on 16/11/2005. He urged the court to grant the application. Learned counsel for the respondent adopted and relied on the written submission dated 25/12/2005 and filed the same date, learned counsel urged the court to dismiss the application.
In his written submission learned counsel for the applicant isolated the following three issues for determination:
“(i) Whether the order of the court below dismissing the application of the appellant for stay of execution without service of the hearing notice on the appellant that the application would be heard on March 15th, 2005 is in violation of the constitutional right of the appellant to fair hearing under section 36(1) of the 1999 Constitution and therefore a nullity.
(ii) Whether writ of attachment that was already endorsed and executed the same day that application for stay of execution was dismissed and within the period of 15 days that the applicant could apply to the Court of Appeal for stay of execution under Order 3 rule 3(3) of the Court of Appeal rules is invalid.
(iii) Whether the counter affidavit of the respondent is an abuse of the court process having regard to the provision of section 36(1) of the 1999 Constitution and Order 3 rule 3(3) of the Court of Appeal Rules 2002.”
On his part learned counsel for the respondent presented three issues for determination:
(1) Whether prayer 1 can be granted by this honourable court when execution had already been carried out.
(2) Whether prayer 2 can be granted by this honourable court when the lower court had not made any decision on the merits of the application before it was withdrawn by the appellant/applicant on 25/7/2005.
(3) Whether indeed the appellant/applicant was not afforded any opportunity to be heard on its application for stay of execution at the lower court.”
In his written submission on issue one learned counsel for the applicant said the issue arose from paragraphs 13-22 of the affidavit in support of the application. He said that the applicant was never served with any hearing notice that the motion would be heard on March 15th, 2005. He referred to paragraph 4-7 of the further affidavit and said the writ of attachment Exh. J was signed before March 15th, 2005 and that the goods of the applicant were attached on the said 15/3/2005 after the applicant’s motion for a stay was dismissed even though the applicant had no notice of hearing against 15/3/2005. He referred to enrolment order exhibit P, which he said, relates to summary dismissal of the application without service of hearing notice on the appellant/applicant. He referred to S.36(1) of the 1999 Constitution and submitted that in the circumstances the order dismissing the application on 15/3/2005 and the subsequent writ of attachment are a nullity. He relied on Launi v. Eseadua (1983) 6 SC 370 for the duty of the court to go through the file to ensure that those who should be served were duly served with the process of court. With reference to S.109 of the Evidence Act, counsel said that the bailiffs proof of service is a public document and that a certified true copy of same ought to have been exhibited by the respondent if the respondent disputes the fact that the applicant was not served a hearing notice for the proceedings on 15/3/2005. He relied on Food and Commodities Production Group v. Aremu (1990) 2 NWLR (Pt. 134) 554 at 564. Learned counsel urged the court to set aside the order of the court below, grant the application and order the release of the appellant’s goods by the High Court Akure.
In issue 2 learned counsel for the applicant said the motion for a stay of execution was filed on 3/2/2005 and the writ of attachment was endorsed on 21/2/2005. He emphasized that the dismissal of the motion and the attachment of the applicant’s goods took place the same day, 15/3/2005. He argued that the attachment of the applicant’s goods was in violation of Order 3 rule 3(3) of the Court of Appeal Rules, which allows a period of 15 days for the applicant whose application for a stay of execution is refused in the lower court to approach the Court of Appeal for the same relief. Counsel relied on Union Bank of Nigeria v. Fajebe Foods (1994) 5 NWLR (Pt. 344) 325 and 345 where execution was levied on 7th October, 1993 after the disposal of the application for a stay of execution on 5/10/93 and the execution was set aside as it was in disregard of section 18 of the Court of Appeal Act. Learned counsel also relied on Williams v. Busari (1973) 1 All NLR Part 1 page 107 at 108 where execution had been carried out but the Supreme Court granted a stay of execution because the seizure of the taxi cab by the bailiff would certainly stultify the appeal proceedings and if judgment on appeal went the other way, the result would be nugatory. He relied on Vaswani Trading Co. v Savalakh Co. (1972) 1 All NLR (Pt. 2) page 483 at 491 – 492, Basorun v. Chief of Army Staff (1989) 5 NWLR (Pt.123) page 590 at 597; 7Up Bottling Co. Ltd v Abiola & Sons Bottling Co. Ltd (1992) 1 NWLR (Pt. 215) 21 at 31, Mobil Oil Ltd v. Agadaigho (1988) 2 NWLR (Pt. 77) 383 at 405.
In Issue 3 learned counsel submitted that the only way to disprove the claim that the applicant was not served a hearing notice for the proceedings taken on 15/3/2005 is by filing a certified true copy of the bailiff’s affidavit that the said hearing notice was served, and this the respondent did not do. Counsel emphasized the importance of service by reference to Launi v. Eseadua (1983) 6 SC. 370 wherein Chief Kehinde Sofola SAN would not support a decision of the court below in favour of his client because there was no indication in the records that the respondent was served with a hearing notice. He said the counter affidavit constitutes not only abuse of the court process but raises irrebutable presumption of organized fraud against the right of the applicant. He argued that on this ground alone the court can order the unconditional release of the applicant’s goods, more so as the applicant has filed its brief of argument. He relied on NICON v. Power and Industry Eng. Co. Ltd (1986) 1 SC 1 at 52 where the Supreme Court said a judgment obtained by oppression, wrong and hard conscience will be frustrated and set aside not for any error or defect in the judgment but for the hard conscience of the party. He urged the court to grant the application.
In Issue 1 in his own written submission learned counsel for the respondent referred to the 2nd leg of the grounds of the application, paragraphs 15, 22 and 23 of the supporting affidavit paragraph 8 of the further affidavit of 7/6/2005 and paragraph 9 and 11 of the further affidavit of 16/11/2005 and contended that the applicant conceded the fact that the execution of the judgment of the lower court delivered on 31/1/2005 was carried out on 15/3/2005. He relied on The Regency Council of Olota v. Sodeinde (1998) 6 NWLR (Pt. 552) 72, 76 A-C and submitted that the court cannot grant a stay of execution as the execution sought to be stayed was carried out on 15/3/2005. He said the motion at the lower court had already been struck out and appeal does not necessarily stay the execution of a judgment appealed against. He relied on Ezechukwu v. Onwuka (2003) FWLR (Pt. 175) 528 at 542. He argued that the order or judgment of a court of competent jurisdiction takes effect from the delivery of the judgment and every court has inherent power to enforce its judgment or order. He relied on U.B.A Plc v. Ishola (2000) 11 NWLR (Pt. 678) 283 at 289 B-C.
As regards the applicant’s argument that the execution was in breach of Order 3 r. 3(3) of the Court of Appeal Rules and deprived him of the right to apply for a stay in the Court of Appeal within the 15 day period stipulated in the rules counsel for the respondent said Order 3 rule 3(3) of the rules applies only if the application was refused by the lower court. The lower court did not refuse the application as it was struck out for want of diligent prosecution. He referred to “Civil Practice in the Court of Appeal” by the Ikwechegh, 1st Edn page 199 for his contention that refusal will not include striking out an application for want of prosecution. He argued further that dismissal of an application for want of diligent prosecution does not mean that the application was heard on its merit nor does it preclude the applicant from filing another application before the lower court. He relied on Abiegbe & ors v. Ugbodume & Ors (1973) NSCC 26, (1973) 1 SC 133 ratio 1. He urged the court to refuse the 1st leg of the prayers, as the court does not act in vain. Dealing with issue two in his written submission learned counsel for the respondent submitted that filing two similar applications at the same time before two different courts amounts to an abuse of court process. He cited and relied on ARC v. JDP Construction (Nig.) Ltd. (2003) FWLR (Pt. 153) 251 at 270, Opekun v Sadiq (2003) FWLR (Pt. 150) 1661-1662 H-Q & F-G, (2003) 5 NWLR (Pt.814) 475. Counsel urged the court to stop an abuse of its processes in line with the observation of the Supreme Court in Agwasim v. Ojichie (2004) All FWLR (Pt. 212) 1600 at 1610, (2004) 10 NWLR (Pt.882) 613; Onyebauchi v. INEC (2002) FWLR (Pt. 103) 453 at 469 (2002) 8 NWLR (Pt.769) 417 and urged the court to dismiss the application as abuse of court process.
Counsel stated that after obtaining a certified true copy of the judgment the respondent applied for a writ of attachment on 17/2/2005. The applicant’s motion was served on the respondent on 25/2/2005. In the circumstance, counsel argued, the cases cited by the applicant are not relevant to the facts of this case. Counsel further contended that having withdrawn the application at the lower court before a decision on the merit could be taken, the applicant cannot file a similar application at the Court of Appeal nor can the applicant rightly keep similar application pending simultaneously at two different courts. He urged the court to deny leg 2 of the application for lack of merit.
As regards issue 3 learned counsel for the respondent referred to the uncontroverted averment in paragraph 4 of the counter-Affidavit and said counsel for the applicant took his copy of his motion without waiting to have the date of hearing inserted therein. He said the applicant’s counsel was served a copy of the respondent’s counter-affidavit and this, he argued, is “a sufficient signal” to the appellant that its motion for stay of execution has been slated for hearing. He submitted it was the duty of appellant’s counsel to be in touch constantly with his address for service within jurisdiction to ensure that he is present at the hearing. He relied on Okeke v. Petmag Nig Ltd (2005) 4 NWLR (Pt. 915) 245 at 267 C – E. It was his case that since the appellant’s counsel who resides in Ibadan gave where he has his address in this jurisdiction and having taken his copy of the motion at the point of filing, cannot be heard to complain of denial of fair hearing. He referred to Fatokun v. Somade (2003) 1 NWLR (Pt. 802) 431 at 445-446 in support of his contention that a defendant who has entered an appearance as in the instant case has a duty to know the subsequent date to which his case is adjourned or fixed to be heard. Counsel argued that the failure of the applicant to take necessary steps in the proceeding in its own motion is a waiver of the requirement of having the motion served in it. He referred to the audi alteram partem enshrined in the constitutional provision of fair hearing and argued that a party is only entitled to an opportunity to be heard. In his view the service of the counter affidavit on the appellant in reaction to its own motion is adequate notice that its motion was coming up for hearing. He relied on Jonason Triangle Ltd. v. C-M & Partners Ltd (1999) 1 NWLR (Pt. 588) 555 at 575 A – C Learned Counsel further submitted that the appellant has failed to discharge the onus on it to prove that it was not served as enjoined by Order 12 rule 31 of the Ondo State Rules of the High Court. He argued that the appellant did not exhibit the book for recording service of process as per Order 12 r. 31 supra. He urged the court to discountenance the claim that the appellant was denied fair hearing. Counsel cited and relied on Specialist/Consult v. Rivers State Government (2002) FWLR (Pt. 91) 1478 at 1491 D-E and said that the appellant, in line with applications of this nature, did not offer to deposit the judgment debt in an interest yielding account.
Finally learned counsel urged the court to dismiss the application with substantial costs.
Before I go into the merit vel non of the application I intend to dispose of some cloudy peripheral matters. From the affidavit evidence and the written submissions counsel for the parties do not appear to agree on whether the motion the lower court disposed of on 15/3/2005, was dismissed or struck out. However, exh. P referred to in paragraph 6 of the applicant further affidavit dated 4th June 2005 and filed on 7/6/2005 leaves no one in doubt that the motion was dismissed for “want of diligent prosecution”.
Another issue is the financial status of the applicant vis-Ã -vis the N25b capitalization imposed on the banks by the Governor of the Central Bank of Nigeria Prof. Charles C. Soludo. In my humble view whether or not the appellant could be “soludorised” (apologies to the press) is immaterial to an issue in this application, to write whether there was a denial of fair hearing in the disposal of the applicant’s motion on 15/3/2005. This is so because even a pauper is entitled to the right to be heard and a court that denies a litigant this right does so at the detriment of the validity of the proceedings, no matter how otherwise well conducted. See Okonkwo v. Okonkwo (1998) 10 NWLR (Pt. 571) 554 SC.
Apart from the issue of the financial status of the applicant and the respondent’s claim that it cannot pay the judgment debt if it looses the appeal; the parties concentrated on the motion the lower Court disposed of on 15th March 2005. They did not canvas the other principles, which guide the court in the determination of a motion for stay of execution pending appeal. In the circumstances apart from resolving the issue of ability vel non of the applicant to pay the judgment debt I will not go short of or beyond the issues canvassed by the parties.
I will take the dispute on the financial status of the applicant. In paragraph 12 of the respondent’s counter affidavit he averred:
“12. That contrary to paragraph 19 and 23 of the affidavit in support the appellant/applicant is financially embattled and would not be in a position to pay the judgment debt in the likely event of the failure of its appeal as it is presently under the management of the Nigeria Deposit Insurance Company (NDIC)
- That the appellant/applicant has failed to meet up with the Central Bank of Nigeria directives on the N25 billion capitalization. A copy of the Guardian Newspaper of 31/3/2005 wherein NUB denies acquiring the appellant/applicant is here with exhibited as exhibit “AB2”.
This counter affidavit was deposed to before the Commissioner of Oaths on 7th November 2005. On 14/11/2005 and in reaction to the paragraphs of the counter affidavit reproduced above one Charles Onyema deposed to a further affidavit on behalf of the appellant/applicant.
In paragraph 6 it was averred..
“6 That counsel to the applicant Mr. Oluwole Aluko, told me and I verily believe that the applicant has met the N25 billion capitalization of the Central Bank of Nigeria and it is being widely published in the Sunday Punch Weekly that the applicant is to be known as First North Bank after the capitalization.”
This averment was not challenged and since it is not inherently incredible the facts averred are deemed proved or admitted by the respondent. Further more contrary to the averment in paragraph 12 of the counter affidavit that the applicant is so financially embattled that…
“It is presently under the management of the Nigerian Deposit Insurance Company (NDIC)”
It was averred in paragraph 14 of the same counter-affidavit.
“That contrary to paragraph 22 of the affidavit in support the appellant/applicant is smoothly operating its banking business, opening and attending to its customers on daily basis.”
In view of the above I find no satisfactory evidence that the applicant will not be capable to pay the judgment debt if it looses the appeal.
Another issue to be resolved before taking the issues canvassed by the parties in their written submission is that the applicant did not offer to deposit in an interest yielding account the judgment sum as, according to learned counsel for the respondent required in the application for stay of money judgment. Counsel relied on Specialist Consult v. Rivers State Government (2000) FWLR (Pt. 91) 1478 at 1491 D – E. I do not think that it is fatal to the application. In the first place the court can impose it as a condition for the order of a stay that the applicant deposits the judgment debt in an interest yielding account pending the determination of the appeal. Secondly, what is involved in the application is equitable remedy, subject to the judicial and judicious exercise of the discretion of the court. Each case depends on its own peculiar facts and circumstances. Decided cases serve only to guide the court in the proper exercise of its discretion based on the facts and circumstances.
They do not constitute binding precedent in this regard. See Diamond Bank Ltd v. P.I. Co. Ltd. (1996) 8 NWLR (Pt.469) 687.
Having disposed of the matters hanging on, and subsidiary to the issues raised and canvassed in the written submissions I will now deal with the said issues.
But before dealing with the issues I wish to isolate matters that do not appear to be in dispute. From the affidavit evidence the application for a stay of execution was dismissed by the lower court on 15/3/2005 in the absence of the applicant. The applicant’s goods were attached on the same date 15/3/2005. The applicant filed a motion before the lower court for an order setting aside the writ of attachment. During the pending of the said motion in the court below, the applicant filed this motion before this court, and later withdraws the motion in the court below.
In the light of the above I will now deal with the issues in the written submission of learned counsel for the parties. In issue one in his written submission learned counsel for the applicant argued that the dismissal of the applicant’s motion without service of hearing notice on the applicant on 15/3/2005 is a violation of the applicant’s right to fair hearing under section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999. In his own issue one learned counsel for the respondent argued that the 1st relief in the appellant’s motion cannot be granted as execution of the judgment had been carried out. He argued that order dismissing the application for want of diligent prosecution is not a refusal to grant the application and so the applicant is not entitled to a 15 day period to file the same application in this court. S. 36 (1) of the constitution guarantee the right to fair hearing. An aspect of the right to fair hearing is that each party to the dispute is heard or given opportunity to be heard before a decision is taken in the matter. And the effective means of ensuring that a party is heard or afforded opportunity to be heard is service of the hearing notice on that party, irrespective of whether the party is the applicant or the respondent, at least on the facts of this case. It is not in dispute that applicant was not served a hearing notice for the 15th March 2005 date when the motion was dismissed for want of diligent prosecution. And in the circumstances of this case service of the hearing notice is sine qua non given the fact that a hearing date was not entered in the copy of the motion given to learned counsel who filed the motion. Failure to serve a process, in this case a hearing notice, where service is required is a fundamental breach which entitles the party against when an order is made to have it set aside. See Wimpey Ltd v. Balogun (1986) 3 NWLR (Pt. 28) 324 at 325. It is a breach of the right to a fair hearing and the consequence of the breach is stated by Olajungu JCA in Ikechukwu v. Olisaka 7 FR 15 at 18. His Lordship said, “As an inflexible rule, breach of the right renders any proceedings conducted in consequence of the breach to be invalid.” In my view, the order dismissing the applicant’s motion on 15/3/2005 is null and void and the execution based on it shares its fate. It therefore follows that the applicant’s relief number one can be granted by this court.
There is also the issue of the 15-day period for the applicant to file his motion in this court after the refusal of the said motion by the court below. Learned counsel for the respondent relied on “Civil Practice in the Court of Appeal” 1st edition by Ibe Ikwechegh page 99 in his contention that refusal by the lower court ….. will not include where the application is struck out as a result of non-attendance of counsel and or the parties. This raises the question: Was the applicant’s motion struck out on 15/3/2005? If the answer is in the positive, was it struck out for non-appearance of counselor the applicant? I have already determined that the application was dismissed, not struck out and the reason assigned to the dismissal was “for want of diligent prosecution”. This cannot be correct in view of the preamble to the order in which the court below said” and the court, after hearing the submission of Mr. Wale Omotosho of counsel for plaintiff/judgment creditor, ordered as follows; The lower court heard the submission of learned counsel for the plaintiff! judgment creditor. But did counsel make his submission on the merit vel non of the application or the non-diligent prosecution of same? If the latter had been the case the court would have struck out the application instead of dismissing same. In any case the respondent, in a motion dated 28/6/2005 and filed on 25/6/2005, averred in paragraph 2 of the supporting affidavit thus “that the respondents by his motion on notice dated 3/2/2005 and filed same day in the lower court praying for an order of the court staying execution of the judgment delivered on 31/1/2005 was heard and dismissed on 15/3/2005 by the Lower court. ” This averment leaves no one in doubt that there was a hearing based on which the lower court dismissed the application thought purportedly for want of diligent prosecution. In my humble view the submission of learned counsel for the respondent, the hearing of the motion and its subsequent dismissal was on the merit, notwithstanding the want of diligent prosecution assigned to it. It therefore follows that the applicant’s motion was refused, and the applicant should have been allowed a period of 15 days to file his motion before this court. The fact that the applicant was denied the right to be heard, see Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt.487) 257 SC, Okonkwo v. Okonkwo (1998) 10 NWLR (Pt.571) 554 SC coupled with the undisputed fact that the writ of attachment of the applicant’s goods was issued during the pendency of the applicant’s motion of stay of execution and the fire brigade approach to the said execution on the same day the motion was dismissed point severally and jointly to the uncomfortable but irresistible conclusion that the fate of the application for stay of execution was pre-determined. I resolve issue one in favour of the applicant.
Issue 2 is on the validity vel non of execution carried in violation of Order 3 rule 3(3) of the Court of Appeal Rules which allows the applicant whose application has been refused a period of 15 days to file the same application in the Court of Appeal. In my treatment of issue one I have dealt with this point. The execution carried out on the date the motion was dismissed deprived the applicant of the right to approach the Court of Appeal within 15 days after the dismissal of its motion. In reaction to the 2nd issue the respondent argued that the 2nd relief cannot be granted because the lower court did not decide on the merit of the application before it was withdrawn by the applicant on 25/7/05. With due respect to learned counsel for the respondent I am unable to appreciate the relevance of the motion withdrawn on 27/5/2005 to the issue raised by the applicant. Learned counsel for the respondent had argue at filing two similar applications at the same time before the different courts amount to an abuse of court process. It has to be noted that the motion in the court below was for an order to set aside the writ of execution whereas the one before others is for stay of execution. But even if it can be said that the two motions are similar the action of the applicant is justified given the fact that its motion was heard and dismissed in its absence and without notice, that the writ of attachment was signed even before the motion was heard and the execution took place the same day the motion was heard and dismissed. In the circumstances the applicant found itself it was proper for the applicant to file the motion before this court in as much as the earlier motion was withdrawn. Filing of two applications in different courts at the same time does not ipso facto constitute abuse of process of court. On the authorities relied on by the respondent the filing of the applications must be coupled with intention to harass, intimidate, irritate and annoy the respondent and the intention or purpose to interfere with the administration of justice. See Opekun v. Sadiq supra relied on by the respondent. I hold, on the facts, that the filing of the applications, one of which was withdrawn before the remaining one was argued in this court does not constitute abuse of process of court. I resolve the 2nd issue in favour of the applicant.
In issue number three the applicant argued that the counter-affidavit is an abuse of the court process having regard to the provision of section 36 of the Constitution and Order 3 rule 3(3) of the Court of Appeal Rules, 2002. Respondent replied that the applicant was afforded opportunity to be heard in its application for stay of execution. Both side agree that learned counsel for the applicant took a copy of the application without the date of hearing indorsed on it. It is also not disputed that the applicant was served the respondent’s counter-affidavit at the address within jurisdiction provided by its counsel. It was counsel case that the service of counter-affidavit on the applicant was adequate notice that the motion was coming up for hearing. I do not agree with learned counsel. Even if it is accepted that the service of a counter-affidavit is adequate notice that the motion was coming up for hearing, the fact that the motion was coming up for hearing does not in itself give notice of the date of hearing. Also the counter-affidavit did not bear a date of hearing the motion. I agree with counsel for the respondent that the principle of fair hearing is satisfied if the party complaining is given the opportunity to be heard. If he does not make use of the opportunity to be heard, he can hardly be heard to complain that he was not heard. However, in this case the mere fact that a counter-affidavit was served on the applicant does not constitute notice that the application would be heard on a particular date.
Learned counsel for the respondent argued that the applicant, in order to establish that he was not served hearing notice, should have tendered the book provided for recording service of processes by Order 12 rule 31 of the Ondo State Rules of the High Court. The respondent did not argue in the alternative that the applicant was served hearing notice for 15/3/2005. The book, even if tendered, will be of no help to the respondent’s argument that the service of a counter-affidavit on the applicant is adequate notice that the motion was coming up for hearing. Be that as it may, I am not persuaded that the counter-affidavit is abuse of process of court having regards to S.36(1) of the constitution and Order 3 rule 3 (3) of the Court of Appeal Rules. Though I resolve this question in favour of the respondent it does not alter the fact that the dismissal of the applicant’s motion without notice of hearing or opportunity to be heard violates the applicant’s right to a fair hearing under S. 36(1) of the Constitution. There is no basis for the argument of learned counsel for the respondent that the service of counter-affidavit on the applicant is “a sufficient signal” to the applicant that its motion has been slated for hearing. As stated earlier in this ruling the counter-affidavit served on the applicant did not have a hearing date endorsed on it.
Also if, as argued by learned counsel for the respondent, learned counsel for the applicant failed in his duty to be in constant touch both his address within jurisdiction to ensure that he is present at the hearing, the failure is that of counsel, not of the applicant and on the facts of the case the applicant cannot be deprived of its right to be heard in court as punishment for the lapses of its counsel. See Tiwani Ltd v. C.T.M.B. Ltd. (1997) 8 NWLR (Pt. 515) 140 wherein the court emphasized on the need to draw a line between the fault of counsel and the fault of a party.
I have considered the authorities relied on by learned counsel for the parties in their submissions.
On the facts before the court, the dismissal of the applicant’s motion for stay of execution of the judgment entered against it, the issue of writ of execution during the pendency of the said application and the execution levied on the day the motion was dismissed without notice to the applicant call in question the impartiality of the court below in the proceedings in this case.
The order of the lower court dismissing the application on 15/3/2005, the writ of execution issued at the pendencies of the motion and the attachment of the applicant’s property on 15/3/2005 based on the said writ of attachment are null and void and I so declare.
In conclusion, I find merit in the application and accordingly, it is granted in the following terms:
- The execution of the judgment of the High Court of Justice, Court No.8 Ondo State sitting at Akure delivered on 31/1/2005 is hereby stayed pending the determination of the appeal against the said judgment.
- The writ of execution of the judgment issued by the High Court No.8 Akure by which the Sheriff of the court attached the applicant’s goods on 15/3/2005 is hereby set aside.
- It is further ordered that the applicant’s goods attached on 15/3/2005 by virtue of the writ of execution issued prior to the date of dismissal of the applicant’s motion be released to the applicant f0l1hwith.
I make no order as to costs.
Other Citations: (2006)LCN/1894(CA)
