Ekiti Local Government Area V. Aje Printing (Nig) Ltd. (2008)
LawGlobal-Hub Lead Judgment Report
JUMMAI HANNATU SANKEY, J.C.A.
This is an appeal against the judgment of the High Court of Justice Kwara State, sitting at Ilorin and presided over by Daibu, J delivered on the 27th day of November, 2006. In the judgment, the learned trial judge granted all the claims of the Respondent as endorsed on the Writ of Summons in the case.
The brief facts leading up to this Appeal are here stated. The Respondent herein, being the Plaintiff at the lower Court, filed an action under the Undefended List Procedure wherein she claimed certain reliefs as endorsed in the Writ of Summons, the principal claim being the sum of N102, 680.00 plus interest. The sum claimed represented the balance outstanding on money payable to the Plaintiff for printing jobs done for the Defendant between 18th, May and 8th June, 2000. The Defendant was duly served the processes of the suit, but neither filed a notice of intention to defend the suit nor an affidavit disclosing a defence on the merit. The matter was slated for hearing on the 18th October, 2006 but was finally heard on 27th November, 2006. The Defendant was not in court nor was he represented by counsel on the date fixed for hearing. Judgment was thereafter entered for the Plaintiff as per his claim on the Writ. Dissatisfied with this decision, the Defendant filed the instant Appeal resting on five grounds. Both parties exchanged Briefs of Arguments in respect of the Appeal.
When this Appeal came before us for argument on the 14th January, 2008, Dayo Akinlaja Esq., learned Counsel for the Appellant, referred to, adopted and relied on the Appellant’s Brief of Argument dated 2nd October, 2007 and filed on 3rd October, 2007, and the Reply Brief dated and filed on 4th December, 2007. Wahab Egbewole Esq., learned Counsel for the Respondent, also adopted and relied on the Respondent’s Brief dated and filed on the 16th November, 2007.
The Appellant formulated one sale issue for determination in this Appeal thus:
Whether, the Judgment of the lower Court is not liable to be upturned in the circumstances of this case. (Arising out of Grounds 1 to 4).
It is submitted for the Appellant that the Judgment of the lower Court is gravely vitiated for three reasons:
a) failure to issue and serve hearing notice,
b) wrongful assumption of jurisdiction on account of the suit being statute-barred, and
c) arbitrary and unwarranted award of interest.
The upsurge of the Appellant’s argument on the first leg is that the lower Court, having not heard the matter on the 18th October, 2006 as originally slated, but on 27th November; 2006, a hearing notice ought to have been served on the Appellant for the new date. In addition, there was nothing before the court to show that the Written Address in support of the application for judgment mentioned in the proceedings of 27th November, 2006, was served on the Appellant before Judgment was entered for the Respondent. He argues that this has occasioned a denial of fair hearing to the Appellant. Secondly, it is submitted that, from the Writ of summons and the affidavit filed by the Respondent, the cause of action accrued on the 1st August, 2000 when the balance on the payment of the contract sum became due. Yet the suit was not instituted until the 12th May, 2006. By this, a period of over five years had lapsed in contravention of Section 18 of the Limitation Act of Kwara State Cap. 89 of the Laws of Kwara State of Nigeria, 1991 which provides for a five year limitation period for an action founded on contract. Thirdly, it is submitted that there was no basis for the 20% pre-judgment interest awarded to the Respondent by the trial Court. Learned Counsel therefore urged the Court to allow the Appeal.
Mr. Egbewole, learned Counsel for the Respondent, agreed with Mr. Akinlaja on the sole issue for determination. It is however submitted in the Respondent’s Brief that, the Appellant, having been duly served with a hearing notice to appear on the 18th October, 2006, had proper notice of the case but failed to take advantage by filing the appropriate processes, and thus is not entitled to any further hearing notice. It is further submitted that the trial Court had jurisdiction to entertain the matter, the Appellant having failed to raise the issue of the Limitation law and having now failed to seek the leave of this Court to raise same, being a fresh issue. This is more so that, even after time had lapsed, the Appellant acknowledged her indebtedness to the Respondent. Finally, on the matter of interest, learned Counsel has contended that the trial Court rightly awarded interest to the Respondent since it was claimed in the Writ, evidence offered on same was not controverted and the award was in line with Order 43 Rule 8 of the Kwara State High Court (Civil Procedure) Rules. He therefore urged the Court to resolve the sole issue in favour of the Respondent dismiss the Appeal and uphold the Judgment of the trial Court with costs:
In a Reply Brief, Mr. Akinlaja contends that it became incumbent upon the Respondent to serve the Appellant with a fresh hearing notice when the attempts at out of court settlement failed. It is further submitted that the issue of jurisdiction can be raised for the first time on appeal and can be raised suo motu by a court. He argues that this therefore obviates the need to obtain the leave of court before making it a ground of appeal. He also contends that moves to settle the matter out of court after processes had been filed and served can never serve as a revival of a case of action that had become statute-barred at the time of filing. He rayed the Court to discountenance the submissions in the Respondent’ Brief and to allow the Appeal.
The Appellant it has raised the issue of the jurisdiction of the lower Court to have entertained the matter. He contends that by virtue of Section 18 of the Limitation Act of Kwara State, Cap 89 Laws of Kwara be brought to court within a period of five years from the date on which the cause of action accrued. It needs to be reiterated here that the question of the jurisdiction in a court to hear a matter is a threshold imperative that it be looked into first or at the earliest opportunity offered. The reason is obvious. Any court proceedings without jurisdiction, not matter how well conducted is a nullity. See Elugbe V. Omokhafe (2004) 12 SCNJ 106; Olutola V. University of Ilorin (2004) 12 SCNJ 236; Ayman Enterprises Ltd V. Akuma Industries Ltd. (2003) 12 NWLR) PT. 834) 22; Oredoyin V. Arowolo (1989) 4 NWLR (Pt. 114) 172; Alao V. COP (1987) 4 NWLR (Pt. 64). Where therefore the issue of jurisdiction is raised, the court has a duty to consider it timeously before taking any further step in the matter. See State V. Onagoruwa (1992) 2 NWLR (Pt. 221) 33; Okafor V. A.G. Federation (1991) 6 NWLR (Pt. 200) 659. Learned Counsel for the Respondent has contended that this Court is precluded from looking into the issue of jurisdiction raised on account of the fact that it was never raised at the court below and no leave has been sought to raise same here. It is however also the law that although an appellate court will not generally allow a fresh point to be taken before it if such a point was not raised, tried or considered by the court below, where the question involves a substantial point of law, substantive or procedural, and it is plain that and no further evidence need be adduced to determine the matter, in which case, the court will allow the issue to be raised to prevent an obvious miscarriage of justice. See Oshatoba V. Olujitan (2000) 2 SCNJ 159; Akpabio V. The State (1994) 7-8 SCNJ 429. However, the general principle is that when a party seeks issue pertains to law or otherwise, leave to file and argue the issue must be had and obtained first. Nevertheless, where the point or issue sought to be raised pertains to the issue of jurisdiction, the point or issue can properly be filed and argued with or without the leave of the court, even if it is being raised for the first time. See Obiakor V. the State (2002) 6 SCNJ 193. Hear the Apex Court, per Katsina-Alu, JSC on a similar matter in the case of Elugbe V. Omokhafe (supra) at page 115:
“If is generally the law that fresh matters cannot be raised on appeal without the leave of the court. But the issue of jurisdiction has always been considered exceptional. Therefore the Court of Appeal was in error not to have allowed the parties to fully address it on the question of jurisdiction raised before it.”
In the same case, at page 117 of the report, Pats-Acholonu, JSC, (of blessed memory), put it even more forcefully when he said:
“I strongly believe and hold it as one of our cardinal principles of our jurisprudence that where a party either due to some carelessness or oversight overlooked a legal point bordering on the competence of a court at the earliest moment or opportunity, he should not be estopped or barred from raising that point at a later date but more particularly before the rendition of judgment after he might have discovered the mistake. Jurisdiction being a fundamental gateway to an assumption of power can be raised at any time as the practice is not immutable. It is a sine qua non for the existence of power to adjudicate on a matter.”
Therefore, much as the procedure by which such a fundamental issue raised may not be in consonance with the stipulated practice for questioning a decision of the court, such will never be allowed to defeat the right to question a jurisdictional defect. A jurisdictional issue is so pivotal and fundamental that it can be raised even suo motu by the court itself so long as the parties are accorded the opportunity to react to the issue. A challenge to jurisdiction must of necessity be attended to expeditiously, particularly if the case is at trial stage, and even on appeal, as in this case. A Court that lacked jurisdiction to entertain a suit is incompetent to pronounce a judgment in respect of any aspect of the matter in controversy before it. Time never runs against a court to decide on the issue of jurisdiction. The consequence of a court continuing a case where it lacks jurisdiction is akin to a court embarking on a frolic which would indisputably result in a nullity. An attack as to jurisdiction cannot therefore be glossed over by any court once it is raised. The procedure by which such a fundamental issue is raised may not be in consonance with the stipulated rules of court for questioning a decision of the court, nevertheless, that will never be allowed to defeat the right to question the jurisdictional defect. See Galadima V. Tambai (2000) 6 SCNJ 190; Owoniboys Technical Services Ltd. V. John Holt Ltd. (1991) 6 NWLR (Pt. 199) 550; Okafor V. AG Anambra State (1991) 6 NWLR (Pt. 200) 659; Ezomo V Oyakhire (1985) 1 NWLR (Pt. 2) 195. It would consequently be a mistake of an enormous magnitude and proportion for a court to be precluded from entertaining a matter on a ‘technical ground’ particularly where the issue of jurisdiction is involved. It is for these reasons that I am obliged to look into the issue of jurisdiction raised, notwithstanding the fact that no leave of court was sought and obtained to raise it as a fresh issue before this Court.
Learned Counsel for the Appellant has taken up issues with the Judgment of the Court below on the ground that it was given without jurisdiction since it was filed outside the time prescribed by Section 18 of the Limitation Act of Kwara State, Cap 89 Laws of Kwara State, 1991. For clarity of argument, the said provision of law is reproduced hereunder:
- No action founded on contract, tort or any other action not specifically provided for in Part I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued.
The said law therefore stipulates that an action founded on contract must be brought within five years from the date the cause of action accrued. For a conclusive determination of this issue, it is only the Writ of Summons and the Statement of claim that must be examined. Since this case was filed under the undefended list, the affidavit in support of the Writ of Summons will be examined alongside the Writ. The Writ of Summons at pages 1-2 of the record of the lower Court states as follows:
“The Plaintiff’s claims N102, 680.00.
- the sum of one Hundred and Two Thousand Six Hundred and Eighty Naira (N102, 680.00) being the outstanding sum balance from the total sum of Two Hundred and Two Thousand Six Hundred and Eighty Naira (N202, 680.00) of printing jobs undertaken for and delivered to the Defendant by the Plaintiff between 78th May, 2000 and 8th June, 2000.
- 10% interest on the said principal sum of N202, 680.00 from May, 2000 to the date of judgment.
- 20%interest on the judgment from the date of Judgment till final liquidation of the whole sum.”
From the above, it is plain that the Appellant, having undertaken and delivered the printing jobs to the Respondent in the period between 18th May, and 8th June, 2000, payment for same became immediately due. The Respondent clearly reaffirms this state of affairs in paragraph 4(j) of his affidavit at page 6 of the record thus:
“The Plaintiff states that if the defendant had paid the sum due to her when due in May, 2000, she would have paid back her creditors immediately and ploughed back her profit back into her business.”
From the account of the Respondent, the Appellant only paid the Respondent a part of the sum due on 1st August, 2000 leaving a balance of No 102, 680.00. The Appellant has since failed to pay the balance outstanding and so honour her own part of the contract. From this it can be garnered that the cause of action accrued in sometime in August, 2000 when the part payment was made. The record of the Court below, particularly page 1 thereof, discloses that the Writ of summons in this case was filed on the 12th May, 2006. Since that is so, calculating from when the part payment was made in August, 2000, it is manifest that the suit was filed well over the 5 years limited by law for filing of suits based on contract. The general principle of law is that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the injured person to commence the action would have been extinguished by such law. See Ibrahim V. judicial Service Committee (1998) 12 SCNJ 255-340. The upshot of this is that the claim of the Respondent was no longer justiciable as it had been caught by the statute of limitation governing same. In other words, the suit had become statute-barred at the time it was instituted and, by the same token, the lower Court lacked the requisite jurisdiction to entertain it. I do so hold.
Ordinarily this should be the end of the matter. However, this Court being an intermediate Court, nothing will be lost in looking into the other issues raised in the Appeal. The next point arising for the consideration is the matter of the non-service of a hearing notice on the Appellant the second time the suit came up for hearing. The record of the lower Court discloses that the Appellant was duly served with all the court processes in relation to the Respondent’s claim. The Respondent had filed the suit and, with the due leave of court having been sought and obtained, the matter was placed on the Undefended List for hearing. By virtue of Order 23 of the Kwara State High Court (Civil Procedure) Rules, 2005, what this meant was that, in the event that the Appellant (as defendant at the lower court), failed, refused and/or neglected to file a Notice of intention, to defend together with an affidavit disclosing a defence on the merit, the Court would treat same as a suit which is not defended. Or, in the event that the defendant filed an affidavit which still did not disclose a defence on the merit, no leave would be granted such a defendant to: defend the suit. In the instant case, having been duly served all the processes in the suit, the Appellant chose not to defend the matter by electing not to file a Memorandum of Appearance, a Notice of intention to defend nor an affidavit disclosing a defence on the merit. The matter was scheduled to be heard on 18th October, 2006. There is no record of what transpired on that date, therefore, it is safe to assume that the matter, for some reason not apparent from the record, was not mentioned at all on that date. However, the record reflects that the matter subsequently came up before the Court on the 27th November, 2006. The Appellant was neither in court nor was he represented by counsel. Learned Counsel for the Respondent on record informed the Court that the Defendant had been served with all the processes of court since August, 2006 with no response and the Plaintiff had therefore since filed an application for judgment on 10th October, 2006. It was on that basis that the Respondent applied for judgment to be entered for the Plaintiff. This was the trial Court’s finding soon thereafter:
“Having carefully gone through the address filed by the Claimant for Judgment, I am of the view that the Defendant in this suit who has been duly served has failed to file a Notice to defend within the stipulated period since the suit is been placed on the Undefended List. Going by the paragraphs of the Affidavit in support of the application of the Claimant it is obvious that the Defendant is evading the court as claimed and that the Defendant has no defence to the suit. I therefore give Judgment to the claimant as applied for as per the Writ of Summon.”
Now it is the Appellant’s case that he was not served a hearing notice for the subsequent date on which the suit was heard and also that the said application for Judgment was not served on him. I have examined the record of the lower Court and find, at pages 16-18 thereof, a Written Address apparently in support of an application for judgment. However, no such formal, application is contained in the record, and none was moved before the court. Nevertheless, I agree with learned Counsel for the Respondent that proceedings filed under the Undefended List Procedure in Order 23 of the Kwara State High Court (Civil Procedure) Rules are special proceedings. They do not toe the line of ordinary civil proceedings in that there are special rules guiding its procedure. The law has since been settled that when a case entered on the Undefended List comes up in court on the return date, the court has one and only one duty, which is to see whether the defendant has filed a Notice of intention to defend the suit coupled with an affidavit. If no such Notice to defend and an affidavit has been filed within five days before the return date, the only course open to the court is to proceed to judgment. A defendant who has been duly served with all the processes in such a suit and who deliberately stays away on the date slated for hearing, cannot be heard to complain that the trial Judge should not have heard the case on that date, especially when same is on the Undefended List. See Ben Thomas Ltd V. Sebi Furniture’s (1989) 5 NWLR (Pt. 123) 523. At pages 19 and 45 of the record is the enrolled order of the lower Court placing the suit on the Undefended List for hearing following the order of Court made on 24th July, 2006 as reflected at page 59 of the record. At page 46 of same is the affidavit of service sworn to by the bailiff of court disclosing that one Mrs. Olajide, Secretary to the Chairman Ekiti LGA, (the Respondent herein), received service of the court processes. Indeed, the Respondent does not dispute that she received these processes. Her quarrel is with the fact that no further hearing notice was served on her for the subsequent date of adjournment on which the matter was heard. Ordinarily, if this matter were on the general cause list for hearing, perhaps such an argument would have made an impact. However, considering that this was a suit governed by the Undefended List Procedure as set out in Order 23 of the Rules of the lower Court, the only duty incumbent on the Court below the very first time the case came up for hearing was to enter Judgment. It had no other option in the matter. We must not lose sight of the fact that the Appellant herein filed no Notice of intention to defend the suit nor did he file an affidavit disclosing any defence. There was no material before the Court to warrant further service of a hearing notice on him since the supposition is that if the Appellant intended to defend the suit, he would have filed a defence to the action. Again it must be borne in mind that these are special proceedings meant for the expeditious hearing and determination of liquidated claims. In the event that the general procedure for hearing of ordinary civil claims is applied, it would defeat the very purpose of the Undefended List Procedure entirely. On the duties of each party to a suit under the Undefended List Procedure, this is how, the Apex court, per Ejiwunmi, JSC, aptly described it in Rivers State V. Specialist Consult (2005) 2 5C (Pt. 1) 121 @ 129:
“… a plaintiff who wishes to proceed against a defendant for a claim under the Undefended List must provide at least affidavit evidence that he served each defendant with the Writ of summons and the affidavit filed with the court registry and other documents he wish to rely upon to obtain judgment … on the service of this documents on him, the defendant has two options. He may either concede to the claim if he has no defence as maintained by the plaintiff or he may wish to defend the action.”
From the record of the lower Court, it is apparent that the Appellant chose the former option. It is now too late in the day for him to retrace his steps after he has been visited with the logical consequences of his action. This is more so that the courts have been consistent in holding that generally, where a matter has been slated for hearing on a particular date, and parties have been properly informed by due service of hearing notices on them, there is no further duty on the court to serve them with hearing notices on subsequent dates of adjournment. A diligent litigant and his counsel are expected to keep abreast of all subsequent dates on which the case is adjourned to. Where they neglect to do so, they cannot be heard to complain, as equity aids the diligent and not the indolent. In the instant Appeal, being a matter on the Undefended List, the Appellant was properly served with all the processes of court and afforded every opportunity to defend the suit. He chose not to. He cannot be heard to complain. I am satisfied that the Appellant was given a fair hearing. The failure of the Court to serve him a hearing notice on the subsequent date of adjournment is of no moment and has not occasioned a miscarriage of justice since the matter was being heard as an undefended suit. I do so find. By the same token, the Written Address filed by the Respondent in these Undefended Procedure proceedings was extraneous, at best superfluous, and perhaps filed ex abundanti cautela. It really has no place in proceedings of this nature and the Court was enjoined to have proceeded to judgment even without same. The fact that it was not served on the Appellant makes no difference and no miscarriage of justice has been occasioned thereby. I do so find.
The final point to be considered under this sole issue is the matter of the interest awarded on the judgment. At pages 64-65 of the record of the lower Court, the learned trial judge gave judgment to the Appellant “as per the Writ of Summons”. What this means is that the Respondent was awarded all his claims as set out in the Writ. An examination of the Writ at pages 1-2 of the record discloses that the Respondent claimed thus on the matter of interest:
“20% interest on the judgment from the date of judgment till final liquidation of the whole sum.”
In order to justify this claim of interest, the Respondent deposed to the following in his affidavit at pages 4-6 of the record:
(i) That the plaintiff obtained financial assistance from friends and well wishers to execute, the projects for which the Defendant had refused to pay with the effect that the Plaintiff (sic) indebtedness to his friend, and associate has continued to attract interest.
(j) The Plaintiff states that if the Defendant had paid the sum due to her, when due in May, 2000, she would have paid back her Creditors immediately and ploughs back her profit into her business.
(k) That the failure of the Defendant to pay has therefore occasioned her non payment, of her Creditors and downward trend in her business.
The governing principles for the award of interest are that interest may be awarded in two distinct circumstances, namely:
(i) as of right; and
(ii) where there is power conferred by statute to do so, in the exercise of the court’s discretion.
Interest may be claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of claim. Where there are facts pleaded in the statement of claim, which in usual practice supersedes the writ, and evidence given thereon which show entitlement thereto, the court may, if satisfied with the evidence, award interest. Adjudication on the plaintiff’s right to interest in such a case is, like on any other issue in the case, based on the evidence placed before the court. The evidence adduced at the trial in such a case should establish the proper rate of interest and the date from which it should begin to run, i.e. whether from the date of accrual of the action: or otherwise. See Ekwunife V. Wayne West Africa Ltd (1989) 5 NWLR; 422; Himma Merchants Ltd V. Alhaji Inuwa Aliyu (1994) 5 NWLR (Pt. 347) 667; Texaco Overseas (Nig.) Petroleum Unlimited V. Pedmar Nigeria Ltd. (2002) FWLR (Pt. 126) 885.
Having regard to these enduring principles, it is my view that for the Respondent to be awarded anything above the statutory interest awardable to her there must be evidence of the right to that sum on record. The evidence could take the form of the agreement between the parties or be evidence of a mercantile custom relevant to the transaction of the parties that led to the claim. It is therefore not enough to claim any additional interest in the writ without pleading sufficient facts in support thereof. I am of the considered view that the averments in the affidavit of the Respondent are not sufficient to ground the award of 20% interest claimed on the Writ. The Respondent I failed to give evidence in her affidavit as to how she arrived at the figure or what agreement, mercantile practice or custom entitled her to same. She therefore woefully failed to; substantiate this head of claim. However, Order 43 Rule 8 of the Kwara State High Court (Civil Procedure) Rules provides for what is, in essence, statutory interest on a judgment debt. Therefore, in my judgment, the Respondent was not entitled to be awarded any sum beyond the 10% post judgment interest on the Judgment debt with effect from the date of Judgment until the liquidation of the Judgment debt, as provided for under Order 43 rule 8. I do so find.
On the whole, having earlier found that the Court below acted without jurisdiction in entertaining this matter, the suit having been filed outside the period of 5 years limited by Section 18 of the Limitation Law Cap 89 Laws of Kwara State, 1991, this Appeal is meritorious. It is allowed. The Judgment of the lower Court delivered on the 27th November, 2006 is hereby declared null and void, it having been given without jurisdiction. The Appellant is awarded costs assessed at N30, 000.00.
Appeal allowed.
Other Citations: (2008)LCN/3032(CA)
