Dangote Flour Mills Plc V. Samagada Industries Limited (2009)

LawGlobal-Hub Lead Judgment Report

JOSEPH EYO EKANEM, J.C.A.

The respondent in this appeal sued the appellant in the High Court of Benue State (the lower Court) in Suit No. MHC/280/2010 for declaratory, injunctive and monetary reliefs. On 23/9/2011, the trial Court (coram Igoche, J.) based on a motion numbered MHC/1199M/2011 entered judgment for the respondent in respect of reliefs 30 (c) and (d) in the statement of claim. This included the sums of N227,921.00 and N6,876,080:00. The respondent, in its ex ? parte application No. MHC/1296M/2011 was granted a garnishee order nisi attaching the judgment debt in the account of the appellant in the Guaranty Trust Bank Plc.

Meanwhile on 17/10/2011, when appellant and its counsel were absent at a pre ? trial conference, the trial Court entered final judgment against the appellant in respect of relief number 30 (a) and (b) which included the sum of N30,668,900:00. The trial Court also awarded general damages of N500,000:00 against the appellant. When there were moves to enforce the judgment, the appellant filed motion No. MHC/1402M/2011 seeking to set aside the default judgment and to

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stay action on the garnishee proceeding. The application was heard by the trial Court and was dismissed on 7/2/2012. Immediately thereafter the trial Court made the garnishee order in motion No. MHC/1296M/2011 absolute against the Guaranty Trust Bank. Aggrieved, the appellant filed a notice of appeal against the decision of the trial Court in Motion No. MHC/1402M/2011 delivered on 7/2/2012 in which the trial Court dismissed its application to set aside the default judgment. The appeal is numbered CA/MK/89/2012.

Again, the appellant with the leave of this Court granted on 9/10/2017, filed a notice of appeal against the judgments of the trial Court delivered on 23/9/2011 and 17/10/2011, respectively. The two appeals were by the order of Court consolidated on 16/5/2019. I shall however deliver separate judgments on them since they still retain their individual identities.

In respect of the instant appeal No. CA/MK/56/2018, appellant filed the following briefs of argument:
(i) Appellant?s brief of argument filed on 25/1/2019 and deemed filed on 16/5/2019;
(ii) A reply brief filed on 9/5/2019 and deemed duly filed on 16/5/2019.

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The respondent filed its brief of argument on 11/4/2019 and the same was deemed duly filed and served on 16/5/2019.

In the appellant?s brief of argument, two issues are formulated for the determination of the appeal. The issues are:
?(1) Whether or not the entire proceedings before the Lower Court and judgment are not a nullity for lack of fair hearing and obtained without jurisdiction. This issue is distilled from Ground 1, 2 and 3 of the Notice of Appeal.
(2) Whether or not the Lower Court could effectively, and legally enter final judgment for the Respondent as per relief 30 (a), a declaratory relief, without taking evidence and without setting aside its order for trial on the merits. This issue is distilled from Ground 4 and 5?.

In the respondent?s brief of argument, the afore ? stated issues are adopt but with modifications as follows:
?1 Whether or not the judgments are a nullity for lack of fair hearing or jurisdiction.
2. Whether or not in the circumstances of this case the lower Court was wrong to grant relief 30 (a)?.
?
The issues formulated by both counsel are in substance the

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same but the issues as formulated by respondent?s counsel are more concise and precise. I will therefore adopt them for the determination of the appeal.

Before treating the issues, I shall first consider the preliminary objection raised by respondent?s counsel at pages 6 and 7 paragraph 3.1 of his brief. Arguments in respect thereof are at pages 7 ? 9 paragraphs 3.3 ? 3.9 of the said brief. F.T. Uparegh, Esq. for respondent referred to the preliminary objection and arguments thereof in his brief of argument in urging the Court to dismiss the appeal.

T.Y. Yaji, Esq. for appellant, in response, referred to his reply brief, pages 1 and 2 paragraphs 2.1.1 ? 2.1.6 which he adopted in urging the Court to dismiss the preliminary objection.
?
The argument of respondent?s counsel in respect of the preliminary objection may be summarised as follows:
(i) That the appellants filed two separate appeals arising from the suit No. MHC/280/2010 instead of one;
(ii) that the parties, the subject matter and the issues in the two appeals are the same, so also the arguments in the two appeals;
(iii) that the later

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appeal, id est, the instant appeal is an abuse of Court process;
(iv) that abuse of Court process lies in the effect the processes would create;
(v) that since the effect of both notices of appeal is to set aside the judgment of the lower Court and restore the suit for trial, both appeals have the same prayer.

The response of appellant?s counsel may be summarised as follows:
(i) the notice of appeal in CA/MK/89/2012 complains against the ruling of 7/2/2012 while the instant appeal is against the judgments of 23/9/2011 and 17/10/2011;
(ii) that it is not the law that one can not file two different appeals arising from one suit.

In the case of Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156, 188 ? 189, Karibi ? Whyte, JSC, had the following to say about the concept of abuse of judicial process:
?The concept of abuse of judicial process is unprecise. It involves circumstances and situations of infinite varieties and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. It is recognised that the abuse of the

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process may lie in both a proper and improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. See Okorodudu V Okoromadu (1977) 3 SC 21, Oyegbola V Esso West African Inc. (1966) 1 All NLR 170. Thus, the multiplicity of actions on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right per se. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, irritate and annoy the adversary and interfere with the administration of justice, such as instituting different actions between the same parties simultaneously in different Courts, even though on different grounds.

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See Harriman V Harriman (1989) 5 NWLR (Pt. 119) 6. Similarly so held was where two similar processes were used in respect of the exercise of the same right. Namely a cross ? appeal, and a respondent?s notice. See Anyaduba V N.R.T. Co. Ltd (1990) 1 NWLR (Pt. 127) 397, Jadesimi V Okotie ? Eboh (1986) 1 NWLR (Pt. 16) 278. This Court has also held as an abuse of the process, an application for adjournment by a party to an action to bring an application to Court for leave to raise issues of facts already decided by Courts below. See Alade V Alemuloke (1988) 1 NWLR (Pt. 69) 207?.
The above was quoted in Ogoejeofo V Ogoejeofo (2006) 135 LRCN 786, 798 ? 799.

To sustain a charge of abuse of process by multiplicity of actions, there must exist;
(i) institution of multiplicity of suits (this includes appeals);
(ii) against the same opponent;
(iii) in respect of the same subject matter; and
(iv) on the same issues. See Conoil V Vital S.A. (2018) 9 NWLR (Pt. 1625) 463.

?There are two appeals numbered CA/MK/89/2012 and the instant appeal involving the same opponents (the parties to this appeal). The appeal in CA/MK/89/2012 is

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in respect of Motion No. MHC/1402M/2011 in which appellant?s motion to set aside the default judgment in Suit No. MHC/280/2010 was refused on 7/2/2012. The appeal in this instance is against the judgment of the trial Court delivered on 23/9/2011 in motion No. MHC/1199M/2011 and the final judgment delivered in the same suit on 17/10/2011, both in suit No MHC/280/2010. It could therefore be said that the two appeals though involving the same parties do not involve the same decisions. However, the two appeals have the same subject matter ? namely, the judgments of the trial Court. The issue is as to the fairness of the proceedings.
There is an aspect of the two appeals that is disturbing to me. In the notice of appeal in appeal No. CA/MK/89/2012, the reliefs sought are as follows:
?i. An Order allowing the Appeal and setting aside the decisions of the Trial Court delivered on 7th February 2012.
ii. An Order restoring Suit No. MHC/280/2010 filed by the Respondent? (underlining is mine for emphasis).
In the notice of appeal in appeal No. CA/MK/56/2018, the reliefs sought are:
?i. An Order setting aside the

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judgments and orders of the of the (sic) Benue State High Court of Nigeria, dated on Friday, the 23rd day of September, 2011 on Motion No. MHC/1199M/2011 and judgment on Monday, the 17th day of October, 2011 in Suit No. MHC/280/2010 issued and delivered under the hand of His Lordship, Hon. Justice T.A. IGOCHE.
ii. An Order remitting Suit No. MHC/280/2010 to the Benue State High Court for hearing on the merits?. (Underlining is mine for emphasis).
The essence of the two appeals is the reversal of the judgments in Suit No. MHC/280/2010 and an order restoring and remitting the case to the trial Court for hearing. If, for example, the appeal in appeal No. CA/MK/89/2012 succeeds, the ruling of the trial Court dismissing the application to set aside the judgments will be set aside, the judgments will be set aside, and the suit will be remitted to the trial Court for fresh hearing. If the instant appeal fails, the judgments of the trial Court will be affirmed and will therefore subsist. Surely, the two decisions will be conflicting decisions on the same subject matter.
In the case of Dingyadi V INEC (No.2) (2010) 18 NWLR (Pt. 1224) 154, 221

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Rhodes ? Vivour, JSC, explained the raison d?etre for the rule against multiplicity of actions thus:
?The basis of the rule is the real possibility of two conflicting decisions in respect of one and the same subject matter?
In the case of Peoples Democratic Party V Sheriff (2017) 15 NWLR (Pt. 1588) 219, 266 it was held that:
?Where two actions are filed one after the other and both actions are asking for a relief common to both of them, the second action is clearly vexatious and calculated to irritate and annoy the adversary?. See also Attorney ? General of Ondo State V Attorney General of Ekiti State (2001) 17 NWLR (Pt. 743) 706, 771″.
In this instance, the two appeals ask for a common relief; essentially to set aside the default judgments of the trial Court and restore Suit No. MHC/280/2010 for fresh trial. The later appeal that is, the instant appeal, is nothing but an abuse of process.
At the pain of repetition, it is necessary to re?state some salient facts of the matter. The trial Court entered default judgments against the appellant. The appellant applied to set aside the said

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judgments but his application was refused. It filed an appeal against the ruling. Some years later, it also filed an appeal against the judgments. The two appeals are pending before this Court. In the case of Agwasim V Ojichie (2004) 10 NWLR (Pt. 882) 613, appellants? appeal in the Court of Appeal was dismissed for failure to file brief of argument. The appellant simultaneously filed two processes. One was an appeal to the Supreme Court against the ruling dismissing the appeal, with the relief that the ruling be set aside and the appeal heard on the merit. The second process was a motion before the Court of Appeal for, inter alia, an order restoring/relisting the appeal in the Court of Appeal. The motion was heard and struck out. The appellant appealed to the Supreme Court against the ruling praying that it be set aside so that the appeal could be relisted and heard on its merit in the Court of Appeal. The Supreme Court held that the appeal was an abuse of judicial process. Tobi, JSC, at page 264 in his contribution stated:
“A litigant has no right to pursue pari passu two processes which will have the same effect in two Courts at the same time, with

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a view to obtaining victory in one of the processes or in both?.
It is my view therefore that the two appeals since they have the same aim or effect ? setting aside of the default judgments and restoring the suit are not available to the appellant simultaneously. The appeal filed later in time is an abuse of judicial process.
There is no doubt, as argued by appellant?s counsel, that a subject matter or an act can give rise to different rights and that different suits can emanate from the same subject matter. However, the suits must involve different rights and reliefs. See Peoples? Democratic Party V Umeh (No. 1) (2017) All FWLR (Pt. 883) 338 and Yakubu V Ajaokuta Steel Company Ltd (2010) 2 NWLR (Pt. 1177) 167.
Consequent upon the foregoing, I hold that the preliminary objection has merit. I therefore uphold the same and dismiss the appeal for being an abuse of judicial process.

The above notwithstanding and being a penultimate appeal Court, I shall proceed to consider the appeal on the merit, starting with issue 1.

ISSUE 1
Whether or not the judgments are a nullity for lack of fair hearing or jurisdiction.<br< p=””

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Appellant?s counsel contended that the entire proceedings, rulings and judgment of the trial Court are vitiated by its breach of the principle of fair hearing. He set out in a chronological order the course of proceedings of the trial Court culminating in the grant of orders and judgments in favour of respondent. It was his submission that the trial Court failed to ensure that the appellant had notice of the proceedings especially following its persistent absence from Court. Citing several cases includingAttorney ? General of Rivers State v Ude (2007) All FLWR (Pt. 347) 598 and Saidu v Mahmood (1998) 2 NWLR (Pt. 536) 130, counsel submitted that failure to serve necessary notices on the appellant rendered the entire proceedings null and void, and of no effect.

Counsel thereafter proffered arguments in respect of what he termed ?error? of the trial Court in refusing to set aside the default judgment. He also presented arguments touching on the merit of the trial Court?s judgment delivered on 23/9/2011. With due respect to appellant?s counsel, these arguments fall outside the scope of issue one which focuses on alleged

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denial of fair hearing. I shall therefore discountenance the same.

Respondent?s counsel submitted in essence that reference to motion No. MHC/821m/ 2011 which was for extension of time to file reply by appellant?s counsel was wrong since the ruling of the trial Court granting the same is not the subject of this appeal. Counsel contended that motion No. MHC/1199m/2011 which resulted in the first judgment of the Court was served on the appellant before it was heard. He referred to pages 14 and 15 of the additional record of appeal to show proof of service. He submitted that a party who fails to attend Court after being duly notified cannot complain of being denied fair hearing. Counsel also proffered the same argument in respect of the final judgment delivered on 17/10/2012. He emphasized that the judgment was given pursuant to Order 25 (6) of the High Court of Benue State (Civil Procedure) Rules, 2007. He noted that the appellant was served with pre-trial conference notices on 23/11/2010 and 13/9/2011 and it refused to attend Court. He argued that appellant who was served twice with pre-trial notices and was granted several adjournments but

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chose to stand by and watch the case could not turn back to complain of breach of fair hearing.

In his reply, appellant?s counsel argued that motion No. MHC/821m/2011 is one of the several reasons why the appellant felt that he was not afforded fair hearing. It was his further argument that since there is an appeal against the decision of the trial Court, the jurisdiction of this Court is automatically invoked over the whole subject matter of the appeal. Reference was made to Section 15 of the Court of Appeal Act and Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016. It was his contention that the power conferred on this Court to hear appeals include power to rehear the case in whole.

RESOLUTION
Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees that in the determination of his civil rights and obligations a person shall be entitled to fair hearing. A breach of the right to fair hearing in a trial or adjudication vitiates the whole proceedings, rendering the same null and void, and of no effect. Any judgment which is given without due compliance with and in breach of the fundamental

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right to fair hearing is a nullity and can be set aside by the Court that gave it or by an appellate Court. See Deduwa v Okorodudu (1976) 9 ? 10 SC 321 and Attorney ? General of Rivers State v Ude (2006) 17 NWLR (Pt. 1008) 436, 456.
The constitutional provisions referred to above is but a codification of the rules of natural justice. One of the pillars of the said rules is that parties to an action must be given an opportunity to be heard. If one of the parties to a matter is refused a hearing or is denied the opportunity to be heard or to present its case then the hearing cannot be said to be fair. See Otapo v Sunmonu (1987) 2 NWLR (Pt. 58) 587.
What constitutes fair hearing depends on the circumstances of each case. So when there is an allegation of breach of fair hearing, the Court is to look at the proceedings of the relevant Court viz ? a ? viz the complaint of the appellant or applicant as the case may be.

In the instant appeal, I shall review the proceedings of the trial Court as reflected on the record of appeal to see if the complaint of breach of fair hearing has been established.
?On 15/4/2011 (at page 209 of

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the record of appeal) both parties were absent but were represented by counsel. On the agreement of both counsel, the case was adjourned to 24/5/2011 for Pre?trial conference. On 24/5/2011 (at page 210 of the record) appellant and its counsel were absent. Motion No. MHC/821M/2011 filed by respondent that morning was adjourned to 10/6/2011 for hearing with an order that the appellant should be served. There is no record that the Court sat on 10/6/2011. The case next came up on 12/7/2011, when appellant and its counsel were absent and the motion was moved and respondent was granted leave to file a reply. The clerk had informed the Court that the motion was served on the appellant through S. O. Idikwu. Esq on 16/6/2011. A copy of the motion is on page 129 of the record of appeal. It should be noted that from the grounds of appeal and their particulars, there is no iota of complaint against the ruling of the trial Court granting the application referred to above on 12/7/2011. The complaint is against the failure to service notices for pre?trial conferences of 23/9/2011 and 17/10/2011 on which dates the two judgments complained of were given.

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It is the law, as submitted by appellant?s counsel in his reply, that this Court is conferred with power to rehear the case in whole by virtue of Section 15 of the Court of Appeal Act and Order 7 Rule 2 (1) of the Court of Appeal Rules, 2016. Nevertheless, such rehearing is in the nature of rehearing in respect of all the issues raised in respect of the case. See Obinechi v Akusobi (2010) 12 NWLR (Pt. 1208) 383, 416. Since the appellant, in its notice of appeal, did not challenge the ruling of the trial Court granting the motion to file a reply, that decision, whether right or wrong, is extraneous to the grounds of appeal and should not be disturbed by this Court. An appellant Court cannot go outside the grounds of appeal to take up an issue not raised by the grounds of appeal. The reason is that a Court, appellate or otherwise, is not a knight errant looking for skirmishes all about the place. See Udom v Umana (No. 1) (2016) 12 NWLR (Pt. 1526) 179, 224 and Ebba v Ogodo (1984) NSCC (Vol. 15) 255, 265. So much for the proceedings of 12/7/2011. After granting the application to file reply on 12/7/2011, the trial Court adjourned the case to

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23/9/2011 for pre-trial conference. No order was made for issuance of hearing notice though appellant and his counsel were absent. On 23/9/2011, appellant and his counsel were again absent. Respondent informed the Court that the appellant had been served with the ?Processes? of the Court. He urged the Court to enter final judgment, moving motion No. MHC/1199/2011. The trial Court noted that appellant had been served through the chambers of O. P. Ulegede & Co. on 13/9/2011 and there was no response. The trial Court found merit in the application and entered judgment for the respondent in terms of reliefs 30 (c) and (d) of the statement of claim.?
The motion on notice numbered MHC/1199m/2011 is at page 145 of the original record of appeal. It bears the date of hearing as 23/9/2011. It is clear from pages 14 and 15 of the additional record of appeal that it was served on the appellant on 13/9/2011 by delivery to Priscilla Onah, litigation secretary in the chambers of O. P. Ulegede & Co. at 2:15 p:m. She signed for it with the address as ?O. P. Ulegede & Co 45 Otukpo Road High Level.? The appellant did not file a counter

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? affidavit to oppose the motion. Be it noted that appellant?s counsel at the trial Court, Idris Yakubu Esq. provided his address for service within jurisdiction as ?C/O S.O. Idikwu, Esq. Ocha P. Ulegede & Co, Joheobe Chambers, First Floor, Joheobe plaza, 45 Otukpo Road, Makurdi.? See page 128 of the original record of appeal. In the case of Registered Trustees of Presbyterian Church of Nigeria v Etim (2017) 13 NWLR (Pt. 1581)1, 33, the Supreme Court held that where a party who was served with a motion on notice refuses to put up appearance or file anything to indicate his intention to object to the grant of the motion, the Court before which the motion is placed for determination can not be accused of hearing the motion in the absence of that party. This is in line with the long line of cases decided by the Courts of the land that a party who refuses to take advantage of the fair hearing process created by the Court can not turn round to accuse the Court of denying him the right of fair hearing. See Newswatch Communication Limited v Attah (2006) 12 NWLR (Pt.993) 144, 171, Olatunbosun v Annenih (2009) 15 NWLR (Pt. 1165) 560,

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573 ? 574 and Okotcha v Herwa Ltd (2000) 15 NWLR (Pt. 690) 249, 258.
I hold therefore that the trial Court did not breach the appellant?s right to fair hearing in entering judgment against it on 23/9/2011 in respect of relief 30 (c) and (d) of the statement of claim.

The next proceeding to be considered is the proceeding of 17/10/2012. It should be noted that at page 211 of the record of appeal on 23/9/2011 the learned trial judge adjourned the case (in the absence of appellant and its counsel) to 17/10/2011 for continuation of pre ? trial conference. No order for issuance of hearing notice on the appellant was made. On 17/10/2011, in the absence of appellant and its counsel, respondent?s counsel applied for judgment pursuant to Order 25 rule 6 of the High Court of Benue State (Civil Procedure) Rules, 2007. The learned trial judge after observing that the case was adjourned to that date to enable the appellant to catch up with the proceedings but that it had failed to do so, entered final judgment in favour of the respondent in terms of reliefs 30 (a) and (b) of the statement of claim.
Order 25 rule 6 of the High Court of Benue State (Civil Procedure) Rules, 2007, provides, in part, that:

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?If a party or his legal practitioner fails to attend the pre?trial conference or obey a scheduling or pre – trial order or is substantially unprepared to participate in the conference or fails to participate in good faith the judge shall:
(a) In the case of the plaintiff dismiss the claim;
(b) In the case of the defendant enter final judgment against him
There are two affidavits of service of pre – trial conference forms and notice (forms 7 and 18) on appellant. One is at page 35 of the additional record. It indicates service of the forms on ?Esther? at ?Lagoz?. There is no indication of who ?Esther? is and what address at ?Lagoz? that service was effected. A bailiff?s affidavit of service that is lacking in particulars as to the person who was served and the place of service cannot be held to be prima facie proof of service. I therefore discountenance the said affidavit of service. The second affidavit of service is at pages 14 and 15 of the additional record. It details service of

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forms 17 and 18 on 13/9/2011 on Priscilla Onah, the Litigation Secretary of O. P. Ulegede & Co. It was sworn to by the Bailiff of the trial Court. It is prima facie evidence of service. Since there is no counter ? affidavit challenging it, it is sufficient to sustain a holding that the appellant was served with hearing notice for the pre ? trial conference scheduled for 17/10/2011. SeeMgbenwelu v Olumba (2017) 5 NWLR (Pt. 1558) 169, 195, 198 and 201.
It is noteworthy that on 23/9/2011 when the pre- trial conference came up before the trial Court, appellant and its counsel were absent. The learned trial Court adjourned the same to 17/10/2011 because the respondent?s answers to the pre?trial conference questions were served on the appellant on 20/9/2011. Having adjourned the pre ? trial conference in the absence of appellant and its counsel and since appellant was still within time to respond to the pre ? trial conference questions, the learned trial Judge ought to have ordered hearing notice to issue on the appellant. The learned trial Judge in entering judgment on 17/10/2011 observed that since 15/4/2011,<br< p=””

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neither the defendant nor counsel on her behalf has appeared in Court. The case was adjourned to 12/7/2011 and then 23/9/2011 and again today just to enable the defendant catch up with the proceedings, still no effort has been made on their part to do so. Today the case is for pre ? trial conference and there is no sign of her readiness to participate in it. Therefore, I have no option but to enter final judgment against her in favour of the plaintiff.?
The first point to be made is that the case was not adjourned from 23/9/20111 to 17/10/2017 for the appellant ?to catch up with the proceedings as observed by the learned trial judge above. Rather the adjournment was because the appellant was still within time. See page 211 of the record. Therefore the adjournment was not a matter of indulgence.
The second point is that, having adjourned as it did in the absence of appellant and its counsel who were still within time in responding to the pre ? trial questions, the learned trial judge should have ordered hearing notice to issue on the appellant for the next adjourned date viz; 17/10/2011. In

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Saidu v Mahmood (1998) 2 NWLR (Pt. 536) 130, 138 Oguntade, JCA, as he then was, held that:
?A Court must be willing to go the extra mile in satisfying itself that a party to a case has a notice of the hearing date.?
His Lordship described the need for constantly giving hearing notice thus:
?This may appear to be an over?indulgence of the defendants, but I think it is a price that is desirable to pay in the quest to attain maximum justice.? Since the Court realized that the appellant was repeatedly absent from Court, the law is that the only procedure was to have issued a hearing notice to the appellant. See Credit Alliance Financial Services Ltd. v Mallah (1998) 10 NWLR (Pt. 569) 341, 348 where Pats ? Acholonu, JCA, as he then was, stated that,
?Where the parties are repeatedly absent in Court, the only procedure to take is to issue a hearing notice.? See also The Principal, GSS, Ikachi v Igbudu (2005) 12 NWLR (Pt. 940) 543, 556. I hold the view therefore that the proceedings of 17/10/2011 and the judgment entered on that day were done in breach of appellant?s right of fair hearing.

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I therefore resolve issue 1 partly in favour of the appellant in respect of the proceedings and judgment of 17/10/2011 only.

ISSUE 2
Whether or not in the circumstances of this case the lower Court was wrong to grant relief 30 (a) of the statement of claim.

Appellant?s counsel contended that relief 30 (a) in the statement of claim being a declaratory relief is not grantable upon admission or default of appearance. He added that the respondent was duty ? bound to lead evidence in proof of the relief and as such the trial Court was wrong to enter judgment for the respondent upon an application. Counsel further contended that it was wrong for the trial Court to have adjourned the suit to be heard on the merit to 17/10/2011 and during the subsistence of the order enter judgment against the appellant on 17/10/2011 in default of attendance at pre- trial conference.

For the respondent, it was submitted by its counsel that relief 30 (a) is not declaratory though couched as such. It was further submitted that Order 25 (6) (b) of the High Court of Benue State (Civil Procedure) Rules, 2007 empowered the Court to grant the

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relief at the stage that it did as it does not distinguish between cases in which judgment may or may not be entered under it. It was finally submitted that the order made by the trial Court did amount to an order adjourning the suit for hearing on the merit, rather the matter was adjourned to 17/10/2011 for continuation of pre- trial conference.

RESOLUTION
At page 211 of the record of appeal in the proceedings of 23/9/2011, the trial Court adjourned the matter in the following words.
?The case is adjourned to 17/10/2011 for continuation of PTC.?
Surely, the contention by appellant?s counsel that the trial Court adjourned the case to 17/10/2011 to be heard on the merit is misleading. Counsel should not seek to mislead the Court for any reason whatsoever as counsel must realise that they are ministers in the temple of justice and their primary responsibility is to the Court in its bid to arrive at the just determination of a case.

Relief no. 30 (a) in the statement of claim, the subject of the issue reads:
?(a) A declaration that plaintiff has paid for all the flour supplied her by the defendant from 18th

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July, 2002 ? October 10, 2009 in the sum of N8, 837,000. (Eight Million, Eight Hundred and Thirty Seven Thousand Naira) only or any other amount on account of her trade transaction (buying of flour) with the defendant for the period in question.?

A declaratory relief is a relief by which the plaintiff prays the Court in the exercise of its discretionary jurisdiction to pronounce or declare an existing state of affairs in law in his favour as may be discernible from the averments in the statement of claim. See Akande v Adisa (2012) 15 NWLR (Pt. 1324) 538, 571.

What the respondent sought in relief 30 (a) is a declaratory relief.
In the case of Walersteiner v Moir (1974) 3 All E.R. 217, 251 Buckley, L. J. stated that;
?It has always been my experience and I believe it to be a practice of long standing, that the Court does not make declarations of right either on admission or default of pleading? but only if the Court was satisfied by evidence.
This statement has been cited with approval as the law by the Supreme Court in several cases. See Bello v Eweka (1981) 1 SC 101, Motunwase v Sorungbe (1988) 5 NWLR (Pt.

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92) 90, 102 Congress for Progressive Change v Independent National Electoral Commissioner (INEC) (2011) 18 NWLR (Pt. 1279) 493, 560 and Tukuru v Sabi (2013) 10 NWLR (Pt. 1363) 442, 459. Respondent?s counsel sought to justify the trial Court?s grant of the declaratory relief at the pre?trial conference by reference to Order 25 Rule 6 of the High Court of Benue State (Civil Procedure) Rules, 2007. The provision has already been set out in this judgment. The reason for the position of the law on declaratory relief is that it is within the discretion of the Court to grant or refuse a declaratory relief; the Court will only grant the same On satisfactory evidence led by the plaintiff. The provision of Order 25 Rule 6 of the High Court of Benue State (Civil Procedure) Rules does not and cannot take away the discretion of the Court which is a part of its inherent powers preserved by Section 6 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
It is my view therefore that the trial Court erred in law in granting relief no. 30 (a) on the application of the respondent and without taking evidence. On this score,

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I resolve issue 2 in favour of the appellant.

Inspite of the foregoing, and having earlier upheld the preliminary Objection, I affirm my earlier order dismissing the appeal for being an abuse of judicial process.

The parties shall bear their costs.

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Other Citations: (2009)LCN/3517(CA)