Chevron Nigeria Limited V. Warri North Local Government Council (2002)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

This appeal is by the defendant, against the judgment and ruling of Akpiroroh, J. (as he then was), sitting at Warri Judicial Division of the High Court of Justice, Delta State.

The plaintiff’s claim as endorsed on the writ of summons filed on 15th July, 1994, is as follows:-

“1. A declaration that the plaintiff is entitled to charge, collect and enforce the payment of rates on defendant’s hereditaments, located within Warri North Local Government Area for the year 1993, pursuant to the mandatory provisions of “The Delta (formerly Bendel State) Local Government Law, 1980, Rating Provisions (Date of corning into force) Order, 1982″.

2. An order mandating the High Court’s Sheriffs, bailiffs and any other person or persons acting on their behalf to enter into the defendant’s premises and destrain the chattels and property of the defendant, for its failure to pay or appeal against the sum of N14,559,693.60, being the 1993 rate and surcharge on the defendant’s hereditaments located within the plaintiff’s Local Government territory.
3. An order mandating the High Court’s Sheriffs, bailiffs and any other person or persons acting on their behalf to dispose of, by public auction the defendants chattels and property as destrained in full satisfaction of the sum of N14,559,693.60 together with a surcharge of 10% per month on the amount due from 1st day of April, 1994, until the day of the said public auction.”

The facts/proceedings leading to this appeal are as follows:-

On the 15th day of June, 1994, the plaintiff filed on ex parte motion in the High Court of Justice, Delta State, Warri Judicial Division, praying the court for the following order:-

“Leave to issue a writ of summons attached to this motion paper and marked as exhibit ‘A’ in the undefended list against the defendant/respondent, as the defendant/respondent has no defence to the intended claim.”

This motion was endorsed to the effect that, fees were paid for the filing of the motion ex-parte (N5.00) and the order sought (N10.00) vide receipt number DT000590916 on 15/6/94 (See page 1 of records).

As borne by the records, there is an affidavit at page 2 of the records, which was sworn to at the High Court of Justice of Lagos State by one Celestine Ikpo, a litigation clerk on the 13th day of May, 1994.

There is no endorsement that the annexures or “exhibits” were either paid for or filed in the Delta State High Court.

On the 15th day of July, 1994, Akpiroroh, J. (as he then was) heard the application ex-parte and made the following order:

“Order as prayed and it is to be placed on the undefended list.

Adjourned to 26/7/94.” (See page 5 of the records)

It is manifest that there is nothing to show that the case came up on 26/7/94. However, it came up on 27th September, 1994, and the learned trial Judge entered judgment as follows:-

“The defendant having failed to deliver the notice of defence and affidavit prescribed by the Rules of court, I will therefore, enter judgment in favour of the plaintiff, against the defendant as per the plaintiff’s writ of summons with costs assessed at N250.00 in favour of the plaintiff.”

(See page 10 of the records).

By a motion on notice filed on the 29th day of September, 1994, the defendant prayed the Honourable Court, among other reliefs, to set aside the judgment on the following grounds:-

“(1) That the court lacked jurisdiction to hear the matter or proceed to enter judgment on the materials placed before it.

(2) The affidavit filed pursuant to Order 23 rule 2 and served on the defendant was incomplete in that the document referred to as exhibits A-A3, B, C, D-D3 were not annexed thereto.

(3) The writ commanded the defendant to enter appearance and it did so.

(4) The claim made in the writ of summons is not for recovery of debt or liquidated money demands for which proceedings by undefended list is available.

And such other grounds contained on the affidavit(s) in support of this motion.”

Defendant’s motion, affidavit in support and exhibits are at page 10 lines 15 to page 22 of the records.

By a letter dated 16th September, 1994, the defendant through its counsel made a written complaint of the none service of vital processes to the Registry of the High Court of Justice, Warri. This letter was referred to as exhibit C in the application to set aside the judgment. The Assistant Chief Registrar responded to exhibit C stating that the exhibits mentioned in the affidavit were not equally attached to the court’s copy but only attached to the motion ex-parte.

The Registrar’s letter is exhibit F. (See page 25 lines 13 to 44 of the records).

Counsel duly argued this motion before the learned trial Judge (see pages 26-33 of the records).

On 30/11/95, the learned trial Judge dismissed the application on the premises that:

“From the welter of legal authorities reproduced above, I have no difficulty whatsoever in coming to the irresistible conclusion that a judgment entered and passed on the “undefended list” cannot be set aside by way of motion.

So also the order granting leave to enter it on the undefended list. The only option open to the applicant is to file an appeal against the judgment. This application therefore fails in its entirety and it ought to be and it is hereby dismissed with N200.00 cost…”

Dissatisfied with the ruling, the defendant filed a notice of appeal containing two grounds on 4/12/95.

On 24/6/96, with the leave of this Honourable Court, the defendant filed an appeal against the judgment (see pages 40-42, 43-45).

With the leave of this Honourable Court granted on 9th March, 2000, an additional ground of appeal was filed in respect of the appeal of 24/6/96, and the two appeals consolidated.

The appellant raised four issues for determination in this appeal. They are:-

“1. Whether in the circumstance of this case, the learned trial Judge was right in dismissing the application to set aside judgment entered under the undefended list without first considering it on the merit or put in another way, whether in the circumstance of the case, the learned trial Judge was right in dismissing the application to set aside judgment entered under the undefended list on the basis that the only option open to defendant is an appeal?

2. Whether in the circumstance of this case, the defendant was given an opportunity or adequate opportunity to defend the suit before judgment was entered against it under the undefended list procedure?
3. Whether there was sufficient materials and/or sufficient legally admissible evidence to entitle the plaintiff to the judgment of the lower court?
4. Whether the learned trial Judge was right in granting the declaration and mandatory enforcement reliefs sought under the undefended list procedure?”

The respondent adopted issues 2, 3 and 4, as framed by the appellant but framed its own issue (1) as follows:-

“(1) Whether, in the circumstances of the case in the court below, the learned trial Judge was right to have dismissed the application to set aside his judgment in favour of respondent entered under the undefended list?”

I have read the issues framed in the briefs carefully and it is my view that issue No.1 in the appellant’s brief is all embracing and a resolution of the issue one way or the other should determine this appeal. I must say however, that issue (1) in the respondent’s brief is akin to that of the appellant. I should therefore start with issue No.1 in the appellant’s brief.

For the appellant, it was submitted that the judgment in this case was entered against the defendant now appellant under the undefended list procedure pursuant to Order 23 of the High Court (Civil Procedure) Rules of Bendel State, 1988. It was contended that it is not in dispute that the appellant as defendant brought an application to set aside the said judgment on the grounds set out in the motion paper to wit:-

1. That the court lack jurisdiction to hear the matter or proceed to enter judgment on the materials placed before it.
2. The affidavit filed pursuant to Order 23 rule 2 and served on the defendant was incomplete in that the documents referred to as exhibits A-A3, B, C, D-D3 were not annexed thereto.
3. The writ commanded the defendant to enter appearance and it did so.
4. The claim made in the writ of summons is not for recovery of debt or liquidated money demands for which proceedings by undefended list is available.
5. The order granting leave to enter the suit in the undefended list and fixing a return date and a hearing notice was not served on defendant.

And such other grounds contained on the affidavit(s) in support of this motion. (See page 11 lines 5-19 of the records).

It was also submitted by learned Counsel for the appellant that the facts in support of those grounds are set out in paragraphs 3, 4, 5, 6, and 7, of the affidavit in support of the motion and in the 6 paragraph reply to counter-affidavit.

Reference was made to pages 24-26 of the records.

It was contended by counsel for appellant that the above grounds and circumstances were fully canvassed before the lower court. It was stated that the lower court did not consider any of those grounds. It was submitted that the lower court made the following ruling on the application:-

“From the welter of legal authorities reproduced above, I have no difficulty whatsoever in coming to the irresistible conclusion that a judgment entered and passed on the “undefended list” cannot be set aside by way of motion so also the order granting leave to enter it on the undefended list. The only option open to the applicant is to file an appeal against the judgment. This application therefore fails in its entirety and it ought to be and it is hereby dismissed with N200.00 costs.”

Reference was made to pages 37-38 of the records. It was submitted that the above ruling of the lower court was wrong.

Learned Counsel for the respondent submitted that the learned trial Judge dismissed the appellant’s application to set aside his judgment entered in the substantive suit under the “undefended list”. It was argued that the issues of the lower court’s jurisdiction and competence to hear the substantive suit and deliver judgment therein raised by appellant in the application to set aside the judgment is with due diference immaterial in the circumstances.

It is the contention of the respondent that once a trial court was satisfied that the writ and affidavit were served on a defendant in an undefended list procedure, it was bound to deliver judgment on the facts before it, where the defendant failed to deliver a notice to defend and an affidavit of defence. Reference was made to the case of Agueze v. Pan African Bank Ltd. (1992) 4 NWLR (Pt. 233) 76; Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) G 523.

I would like to first of all deal with the application made to the lower court to set aside its judgment. The application raises the issue of jurisdiction and competence of the court on the grounds inter alia that the defendant/appellant was not served with due processes and that the court was not properly approached by due processes.

With respect to the learned trial Judge it seems to me that he went off the tanget and missed the point when he considered the “welter of legal authorities” without reference to the particular facts and circumstance of this case.

It was a grave error on the part of the learned trial Judge to have abandoned the fundamental issues of competence and jurisdiction raised in the application and to dismiss the application on the basis of “welter of legal authorities.”

The law is that once the issues of none service of the processes of the court and the incompetence of the claim have been submitted to the learned trial Judge, he was duty bound to consider them on their merit and decide on them.

In Shell Petroleum Development Co. v. Lawson Jack (1998) 4 NWLR (Pt. 545) 249 at 279-280, Uwaifo, J.C.A. (as he then was) said:-

“It must be said that as a matter of principle a Judge or court has a duty to make a pronouncement on or resolve an issue raised and argued in the course of proceedings by the parties. That is part of the statutory responsibility and a tenet of the administration of justice which cannot be undermined for ulterior, any or no reason. Failure to perform that duty may lead to a miscarriage of justice; but it may also lead to loss of confidence in the manner justice is administered. A court should not side-track a point put forward by a party in pursuit of its side of the case. It is the same as the duty to resolve issues which arise on the pleadings. See Metal Construction (WA.) Ltd. v. Milgore (1975) 6-9 SC 163. Even if an issue is considered irrelevant or unimportant, it is better to dispose of it by saying so and with convincing reasons.”

It must be said also that the “welter of legal authorities” relied upon by the learned trial Judge were not applicable to the facts and circumstances of this case. In all those cases, all the court processes were duly served on the defendants who thereby had opportunity to defend the suits but failed to do so. The competence and jurisdiction of the court in those cases were never in issue. Those cases are therefore not applicable in this case to my mind.

In Adegoke Motors Ltd. v. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250, at 265-266, paras. H-A, (1989) Vol. 20, 2 NSCC 327 at 330-331, Oputa, J.S.C. said:-

“It also appeared in rather bold relief that there is now a tendency among our Lawyers and sometimes among some of our Judges, to consider pronouncements made by Justices of Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case.

Pronouncements of Justices whether they are rationes decidendi or obiter dicta must therefore inextricably

and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.”

In the case in hand, the facts before the learned trial Judge were that the defendant was not served with any hearing notice, the order of the court, the exhibits put forward by the plaintiff/respondent and relied upon for its claim.

The Assistant Chief Registrar of the High Court confirmed this fact when at page 43 lines 24-30, he said:-

“I wish to refer to your letter dated 20th March, 1996, and to state that there is no proof of service in the file to show that the enrolment of order placing the suit for hearing on the undefended list and fixing hearing date for 27/9/94 was served on the defendant.

(SGD) S. O. Ataikiru (S. O. ATAIKIRU) Assistant Chief Registrar.”

It is now elementary law that failure to serve court processes on a defendant including hearing notices is a fundamental defect which render proceedings thereunder null and void as the court lacks jurisdiction to adjudicate. See Julius Berger Plc. v. Femi (1993) 5 NWLR (Pt. 295) 612; Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1 at 15 and 22; Credit Alliance Fin. Serv. Ltd. v. Mallah (1998) 10 NWLR (Pt. 569) 341 at 349.

I hasten to add that where a case is decided without jurisdiction, it is a nullity and the court that gave the decision/judgment has an inherent power to set it aside no matter how well conducted or sound the judgment may be: see Skenconsult Nigeria Ltd. v. Ukey (1981) 1 SC 6 at 26; Wimpey Ltd. v. Balogun (1986) 3 NWLR (Pt. 28) 324 at 339; Matari v. Dangaladima & Furniture Co. Ltd. (1993) 3NWLR (Pt. 281) 266; Okoye v. Nigerian Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 547 to 548; A.C.B. Plc. v. Losada (Nig.) Ltd: (1995) 7 NWLR (Pt. 405) 26 at 45.

It is manifest from the records that in the High Court, defendant now appellant contended that the plaintiff’s claim is not one envisaged under Order 23 of the High Court (Civil Procedure) Rules of Bendel State and that the procedural defects adopted by plaintiff go to the root and competence of the court to give the judgment. In Madukolu v. Nkemdilim (1962) (Pt. 2) All NLR 581-590 the Supreme Court per Baraimian, F. J. took a firm stand on jurisdiction thus:-

” …I shall make some observations on jurisdiction and the competence of a court. Put briefly, a court is competent when:-

1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.”

I am not in doubt that any defect in competence is fatal, for the proceedings are a nullity however, well conducted and decided, the defect is extrinsic to the adjudication.

Order 23 of the Bendel State High Court (Civil Procedure) Rules, 1988 applicable in Delta State provided as follows:

“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the 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 of the particular case.”

It should be noted that plaintiff’s main case is for a declaratory relief.

It is not a claim for recovery of a debt or liquidated money demand within Order 23. Plaintiff’s declaratory action in this case, cannot therefore be brought under the undefended list procedure. Such a procedure for a declaratory relief rendered the court incompetent. Judgment in such circumstance can be set aside by the same Judge.

As shown by the record, there is no identification that a hearing notice was issued and or served neither is there indication that any order of court fixing the suit for hearing on 26/7/94 or 27/9/94 was served on the defendant/appellant or its counsel.

In Okereke v. Ejiofor (1996) 3 NWLR (Pt. 434) 90 at 104-105; Achike, J.C.A. (as he then was) said of undefended list judgment:”

To elevate the judgment resulting there from to “a judgment given on the merits of the case after due hearing and not a default judgment” even though the appellant had no notice of the processes and the proceedings in respect thereof, smacks of injustice… It is erroneous for the learned trial Judge to hold that, he became functus officio once he delivered a judgment in an action on the undefended list and that the only way the judgment could be questioned is by appeal or by another action. While such judgment can be questioned by way of appeal or yet another action, additionally, the trial Judge in a proper case can set aside the judgment given on the undefended list if he was satisfied that there has not been a real hearing by reason of the fact that the defendant, as stated, has not had the benefit of a fair hearing.”

From all the circumstances of the case in hand as revealed by the records the defendant/appellant in this case did not have the benefit of a fair hearing.

I have no doubt in my mind that, the learned trial Judge was wrong to have held that the only option open to the defendant is to file an appeal. The defendant’s complaint was that it was not served with court processes. Where the issue of none service or irregular service is made, it is not a matter for the Court of Appeal but one for the trial court to deal with. In Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 273, Oputa, JS.C. put it thus:-

“In this case, the company did not move to set aside either the writ or the service of an irregular or invalid writ. The defendant/appellant did none of these things. Can it really now, in an appellate court, question either the writ or its service? I think not. It has to be proved that the writ was radically, intrinsically and substantially invalid and was, thus so incurably defective, that it amounted to a nullity. This proof should normally be offered in the High Court where the defendants should have complained about the invalidity of the writ or its service. In Skenconsult, there was such a challenge about the invalidity but Maidoh, J. thought that he would be converting his court into an appellate court from the orders of Ekeruche, J. (as he then was). It was this point that was taken up in Craig v. Kansen (1943) 1 All ER 108, where it was held that an order which is a nullity is something which the person affected by it is entitled to have set aside ex debito justititae. In such a case therefore, the court that made the order, in its inherent jurisdiction, can set aside its own order and an appeal is not necessary.”

I hold a strong view that having regards to the circumstances and the grounds upon which the application was made at the court below, the learned trial Judge had inherent jurisdiction and power to hear the application and determine it on the merit. From the foregoing, it seems to me that the learned trial Judge was wrong in not considering the application on the merit and that error occasioned a serious miscarriage of justice.

Since I have come to this conclusion in this appeal, I consider it otiose and a barren exercise to consider the remaining issues in this appeal, which appear to me to be interwoven or at least an extension of issue No. 1.

In the result, I allow this appeal at it is meritorious. I set aside the judgment and the ruling of Akpiroroh, J., (as he then was) in suit No. W/18/94. I order a retrial of the suit before another Judge at the Warri Judicial Division of the High Court of Justice, Delta State. It would occasion a greater miscarriage of justice, if an order of retrial in this case is not made. See Yusuf Abodundu & Drs. v. The Queen (1959) 1 SCNLR 162, (1959) 4 FSC page 70 at Pp. 73-74. No order as to costs.

---

Other Citations: (2002)LCN/1072(CA)