Guinness Nigeria Plc. V. Prince Obot Ufot (2007)

LawGlobal-Hub Lead Judgment Report

OWOADE, J.C.A.

This is a consolidated appeal against the decision of the Akwa Ibom State High Court, Ikot Abasi Division, contained in the rulings of Okpo, J. dated 29th April, 1998 and 30th August, 1999 respectively.

By a writ of summons dated and filed on 11th August, 1997 in suit No. HAB/40/97 the respondent as plaintiff claimed against the appellant and one Mrs. Charity Ukofia as 2nd and 1st defendants respectively, the sum of N2 million (Two million Naira) representing special and general damages for negligence in the manufacture of its product Guinness Big Stout which the plaintiff allegedly consumed and developed an ailment. The plaintiff’s/respondent writ of summons was followed by a statement of claim dated 20th August, 1997 and filed on 4th September, 1997.

Meanwhile, the 1st defendant filed a memorandum of appearance but the 2nd defendant (now appellant) did not. However, on the 14th January, 1998, the appellant then 2nd defendant filed a statement of defence dated 1st September. 1997 out of time and without leave of court so to do. In the pendency of the 2nd defendant’s/appellant’s statement of claim and the 1st defendant’s memorandum of appearance, the respondent as plaintiff brought a motion against the defendants for judgment in default under the provision of Order 14 rule 1 of the High Court (Civil Procedure) Rules, 1989 of Akwa Ibom State. In the absence of the appellant as 2nd defendant, the learned trial Judge entertained the motion for default judgment, took the evidence of the plaintiff and his medical witness and on the 29th April. 1998, gave a ruling in which he entered final judgment upholding the plaintiff’s claims as against the 2nd defendant/appellant only. By a motion dated 21st May, 1999 and filed on 24th May, 1999 in suit No. HAB/Misc. 29/99, the appellant as applicant before the lower court brought a motion:

(a) For an order extending the time within which the 2nd defendant/applicant can apply to set aside the judgment delivered in suit No. HAB/40/97 on 29th April, 1998 in default of appearance at trial.

(b) An order setting aside the said judgment.

(c) Leave to defend the action as per the statement of defence filed on 14th January. 1998.

(d) An order granting a stay of execution of the judgment delivered in suit No. HAB/40/97 on 29th April, 1998 in default of appearance at trial, pending the determination of the suit on the merit, and

(e) For such further and/or other order(s) as this Honourable Court may deem fit to make in the circumstances.

The trial court took arguments on this motion and on the 30th day of August, 1999 in a considered ruling, the court found no merit in the appellant’s/applicant’s motion on notice to set aside, refused and dismissed same.

The appellant’s brief of argument dated 14th November. 2002 was filed on 18th November. 2002. The respondent with leave of court filed a notice of preliminary objection, the argument of which was incorporated in his brief of argument dated 6th February, 2004 and filed on 9th February. 2004 whereof, the appellant filed a reply brief on 16th February, 2006.

In its notice of appeal dated 11th April. 2000 and filed on 13th April, 2000, the appellant filed five (5) grounds of appeal. In the brief of argument, learned counsel for the appellant submitted three (3) issues as arising for determination.

“1. Whether the proceeding of the 29th day of April, 1998 and 30th day of August, 1999 respectively were proper in law.

2. Whether the appellant was denied a fair hearing by the lower court and whether a travesty of justice was committed by the lower court against the appellant by the said denial of fair hearing?
3. Whether the award of damages was proper in law?”

The respondent on the other hand formulated the following two (2) issues for determination.

“1. Whether the appellant’s counsel could be heard in argument despite failure to enter appearance and/or submit to the jurisdiction of the court.

2. Whether a statement of defence can be filed after the normal statutory period had expired in the absence of a prayer for extension of time for same.”

I will consider the preliminary objection raised in the respondent’s brief of argument before dealing with the issue in the main appeal.

The summary of the four (4) issues raised in the respondent’s preliminary objection are as follows:

(a) That the parties to the appeal are incompetent.

(b) That the prayers for extension of time to apply for leave and for leave to appeal (in trinity) did not accompany the notice of appeal.

(c) That the grounds of appeal are of facts or at best mixed law and facts and leave of court was not sought for and obtained prior to the filing of the notice of appeal.

(d) That the photocopy of the notice of appeal dated 11th April, 2000 but filed on the 13th April, 2000 was wrongly “admitted” by the court.

Arguing his first objection, respondent argued that the 1st respondent herein was the plaintiff in the lower court while there were two defendants namely:-

1. Charity Ukofia and
2. Guinness Nigeria Pic and that in the two applications before the Court of Appeal on 2nd March. 2000 and for enlargement of time to appeal, the appellant gave the parties to the application dated 24th February. 2000, as shown on the motion paper and supporting affidavit as follows:

“1. Charity Ukofia (Mrs.)

2. Guinness Nigeria Plc. – Defendant/Respondent

And

Prince Obot Ufot – Plaintiff/Respondent”

Respondent submitted further that on the drawn-up order of the Court of Appeal on 4th April, 2000 the parties were altered, and that there is no evidence from the record of any order of court authorizing the alteration as follows:

“Guinness Nigeria Plc – Appellant

And

Prince Obot Ufot – Respondent”

The patties in suit No. HAB/40/97 the judgment from which suit the instant appeal arises, said respondent, are different from the parties mentioned above and that no proper leave of court has been sought and obtained authorizing the alteration. Consequently referring to the cases of FCMB v. Abiola & Sons (1991) 1 NWLR (Pt. 165) 24, Harry Akande & Sons Ltd. v. General Electric Co. & Ors. (1979) 3 – 4 SC 115 at 125, the proper patties are not before the court, and the power of this court to hear and determine the instant appeal is hamstrung by the incompetence of the parties.

In reply to the respondent’s 1st preliminary objection the learned counsel for the appellant submitted that the appellant did not alter the parties before the Court of Appeal. Besides, the act of typing orders of court is not the work of the appellant and the respondent if aggrieved can on application, have the record of the Court of Appeal varied.

The case of FCMB v. Abiola & Sons Limited (1991) 1 NWLR (Pt. 165) 14 cited by the respondent does not apply to this case. In that case, said appellant’s counsel, the appellant increased the number of appellants from the initial 3 defendants to 5 appellants and the Court of Appeal held that there was the presence of 2 extraneous persons. This is because, the notice of appeal in that appeal, contained names of persons who were not parties in the suit No. KWS/215/68 from which the appeal arose and no leave of court had been obtained to join such persons. In contrast, said appellant’s counsel, the parties in this appeal are as stated on the record from the inception of the suit and the notices of appeal dated 11th April, 2002 through which the court’s jurisdiction is invoked carries the only 3 parties.

I do agree with the learned counsel to the appellant that the respondent’s 1st ground of objection is indeed misconceived. The only notable error demonstrated by the respondent in that ground of objection is the clerical error of the Court of Appeal contained in the drawn-up order given by this court on 4th April, 2000 signed by O. Edozie as Presiding Justice extending the time in which the appellant/applicant may file appeal. In the said drawn-up order, Guinness Nigeria Plc was rightly described as appellant and Prince Obot Ufot rightly described as respondent. The only missing name in the drawn-up order is that of Charity Ukofia (Mrs.) who would have been described as 2nd respondent. This is the only omission that is observable in the description of the parties though not so stated by the respondent himself. This omission which is clearly clerical can only be attributed to the Registry of the Court of Appeal and not the appellant. Furthermore, the omission is only limited to the drawn-up order of 4th April, 2000. It is not repeated in any of the processes filed by the appellant and it is not indeed repeated in any of the processes filed in Court. The name of Mrs. Charity Ukofia was indeed formally deleted from this appeal by leave of court after the briefs of argument have been filed. The omission does not affect the order of 4th April, 2000 itself. It has nothing to do with the processes filed in court. It cannot and does not render the court incompetent to entertain this appeal.

I hold therefore in agreement with the learned counsel to the appellant that the parties in this appeal are stated on the record from the inception of the suit and the notices of appeal dated 11th April, 2002 through which the court’s jurisdiction was invoked carries the description of the three (3) parties to the appeal. The respondent’s 1st objection is misconceived and it is hereby overruled.

On the 2nd objection, the respondent states that where an intending appellant who is out of time to file his notice of appeal does not include prayers for extension of time to apply for leave with his prayer for an order enlarging the time within which to appeal but he is granted such a prayer for enlargement of time within which to appeal, and he subsequently files his notice of appeal as in this case, the appellate court would have no jurisdiction to hear and determine the appeal.

In response to the 2nd ground of objection, learned counsel for the appellant submitted that this objection should have been raised when the application for extension of time to file the notice of appeal was heard on the 4th day of April, 2000 in this court in the presence of the respondent. The respondent did not file a counter-affidavit then and gave no indication that he would oppose the application on the ground of an alleged absence of the trinology prayer. In the event. a challenge of this court’s decision of the 4th day of April, 2000 can only be challenged by an appeal of that decision not by way of a preliminary objection.

Here again, I agree with the learned counsel to the appellant that the decision of the Court of Appeal of 4th April, 2000 based on the court’s discretion to grant extension of time to the appellant to file the present appeal cannot now be challenged and cannot be challenged in the present appeal. The ruling of this court to grant extension of time to appeal cannot even be challenged by way of a cross-appeal in the present appeal not to talk of a challenge by way of a preliminary objection. The interlocutory ruling of the Court of Appeal delivered on 4th April, 2000 has nothing to do with the substance of this appeal which originated from suits Nos. HAB/40/97 of 29th April, 1998 and HAB/Misc. 29/99 of 30th August, 1999. If the respondent was therefore truly aggrieved on the interlocutory ruling of the Court of Appeal for extension of time dated 4th April, 2000, his remedy is to file an appeal against that ruling.

For these reasons, the respondent’s 2nd objection also lacks merit and it is hereby overruled.

The 3rd ground of objection by the respondent is that the instant appeal are of facts or at best mixed law and facts. that no leave of court was sought for and obtained prior to the filing of the notice and grounds of appeal on issues of facts or mixed law and facts, that the records of appeal has disclosed no specific order of court authorizing the appellant to argue grounds of mixed law and facts. On this, respondent’s counsel referred to the case of Aja v. Okoro (1991) 7 NWLR (Pt.203) 260, (1991) 5 LRCN 1699

In response to the respondent’s 3rd grounds of objection, learned counsel for the appellant submitted that appellant’s notices of appeal, dated 11th April, 2000, against the default judgment delivered by the learned trial Judge on the 29th day of April, 1998 and the ruling dated 30th August, 1999 consolidated, contain grounds of law not “fact or at best mixed law and facts” as alleged by the respondent.

The said grounds of appeal border on the following issues:

i. Non-service of court processes on a part.

ii. What constituted the entry of appearance under the Akwa Ibom State High Court (Civil Procedure) Rules and

iii. Denial of fair hearing to the appellant, contrary to the provisions of the Constitution.

All of which, said appellant’s counsel are grounds of law in respect of which appeal is of right, without the necessity of the leave of either the lower court or the Court of Appeal.

Undoubtedly, the judgment delivered by the learned trial Judge on 29th day of April, 1998, was a final judgment in “default of appearance” pursuant to Order 14 rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989. The criteria to determine whether a decision is final or interlocutory can be ascertained by the effect or the result of the decision that is, whether the ruling, judgment or order has finally determined the rights of the parties. If the ruling, judgment or order has finally disposed of the rights of the parties as in this case, then such ruling, judgment or order is final. See Ifediora v. Ume (1988) 2 NWLR (Pt. 74) 5, Hi-flow Farm Industries Ltd. v. University of Ibadan (1993) 4 NWLR (Pt. 290) 719.

The respondent in this case did not mention which of the appellant’s five (5) grounds of appeal is of mixed law and fact, nevertheless it is pertinent to peruse the grounds of appeal and see whether they are grounds of law as contended by the appellant or whether any of the grounds of appeal are indeed of mixed law and fact. The five grounds of appeal filed by the appellant on 11th April, 2000 devoid of their particulars are as follows:-

Grounds of appeal

1. The learned trial Judge erred in law and went beyond the province of judicial authority when he heard and determined the plaintiff’s application for final judgment which was not served on the 2nd defendant contrary to the decision of the Supreme Court in African Continental Bank Plc. v. Losada (Nigeria) Limited (1995) 7 NWLR (Pt. 405) 26 and thereby came to a wrong decision which has occasioned a miscarriage of justice.
2. The learned trial Judge erred in law in giving judgment in favour of the plaintiff in that the proceedings before him were irregular, null and void and thereby came to an erroneous decision.
3. The learned trial Judge misdirected himself in law in holding that-

“….but where there is no memorandum of appearance, the 2nd defendant is not entitled to take any steps whatsoever in the proceedings i.e. to say that 2nd defendant had no place to stand and no leg to stand upon to file the statement of defence before the court so the court cannot look at it at all.”

and thereby came to a wrong decision which has occasioned a miscarriage of justice.

4. The learned trial Judge erred in law in failing to grant the appellant fair healing in the matter and this failure has led to a miscarriage of justice.
5. The learned trial Judge misdirected himself in law in holding that:-

‘(i) The second defendant shall pay to the plaintiff the sum of N150,000.00 as the medical expenses,

(ii) N1,850,000.00 as general damages for negligence in the manufacture of the Guinness Stout part of which was consumed by the plaintiff on this date in question.

This payment shall be subject to interest at the rate of 6% per annum to the date of judgment and cost and thereby came to an erroneous decision in the matter.

It is trite, that where a ground of appeal raises an issue of law based on acceptable, undisputed or admitted fact or facts as found by the trial court, it is a ground of law. In the instant case, it is not in contention that the five (5) grounds of appeal filed by the appellant derived from the fact that the learned trial Judge entered judgment in default of appearance under Order 14 rule I of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 pursuant to a motion on notice for judgment in default of appearance dated and filed on 26th March, 1998. All the errors alleged in the appellant’s grounds of appeal are against the conclusions of the lower court on undisputed facts. All the grounds of appeal are therefore competent as grounds of law. Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484, Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718, Metal Construction (West Africa) Ltd. v. Migliore 91990) 1 NWLR (Pt.126) 299, ACB Plc. v. Obmiami Brick & Stone (1993) 1 NWLR (Pt.294) 399.

From the foregoing, the 3rd ground of preliminary objection by the respondent equally lacks merit and it is hereby overruled.

The fourth preliminary objection from the respondent is what he termed the admissibility of the notice of appeal dated April 11, 2000, but filed on 13th April, 2004 which form pages 34 to 38 of the record of appeal. Respondent submitted that there is no admissible evidence of the contents of the notice of appeal and thus there is no proof that the purported notice of appeal is a true copy of what it purports to be and it therefore offends against the provisions of sections 97(1)(e), 97(2)(c) and 109(a)(iii) or the Evidence Act, Cap. 112, LFN, 1990.

The document is by law inadmissible and in any event and in all the circumstances and therefore cannot be acted upon by the court. He urged the court to expunge the purported notice of appeal.

In reply, appellant’s counsel submitted that the issue of admissibility of the notice of appeal dated 11th April, 2000 filed by the appellant does not arise here since the notice of appeal was not considered for admission under the rules of court and neither was it sought to be proved by the appellant in accordance with section 97(1)(c) of the Evidence Act. Also, that by virtue of sections 96, 97(1)(e), 97(2)(b) and 109 of the Evidence Act, the notice of appeal herein are public documents certified true copies of which had been obtained and placed before this Honourable Court as ordered. And that this Court as power to look at a document in its file whether or not tendered as exhibit. Counsel referred to the cases of Agwarangbo v. Nakande (2000) 9 NWLR (Pt. 672) Pg. 341 at 361. Chief M.O. Agbaisi P. Ebikorefe (1997) 4 NWLR (Pt. 502) pg. 630 at 649, Salami & Ors. v. Oke (1987) 4 NWLR (Pt. 63) pg. 17. 9 – 10.

Appellant’s counsel furthered, the copy of the notice of appeal dated 11th April, 2000 which learned counsel for the respondent admitted in his respondent’s brief was filed on 13th April, photocopy of an already certified copy before this Honourable Court, with all the endorsements and stamp of the court on it. On this point, Counsel referred to pages 12 – 17 of the supplementary record of appeal and also to the cases of Daily Times Nigeria Ltd. v. Williams (1986) 4 NWLR (Pt.36) Pg. 526 at 536 and Ijeoma v. Obiukwu (1994) 1 NWLR (Pt. 36) Pg. 526 at 536 and Iheonu v. Obuikwu (1994) 1 NWLR (Pt. 322) Pg. 594 at 601 counsel continued, respondent was present in court, on the 17th day of January, 2002, when this Honourable Court ordered that the documents compiled by the appellant’s counsel for use as record of appeal be “certified” by the Registrar of the High Court of Ikot Abasi Judicial Division of Akwa Ibom State.

The documents contained in the record of appeal were certified, the receipt of filing the notices of appeal was attached and thereafter, on the 23rd day of April, 2002, the appellant’s application for the departure from the rules was granted.

In concluding, the response on the respondent’s fourth ground of preliminary objection, appellant’s counsel submitted that the respondent did not give notice of the 4th ground of objection and did not object to the application for departure from the rules based on an allegation of the notice of appeal in his possession being a photocopy. He has also filed the respondent’s brief pursuant thereto and cannot now be heard to complain.

At this stage, it is important for easy understanding, to point out that it is a misnomer in the circumstances or this case for the respondent to refer to the processes of certification of public documents as admissibility of the said documents. The Court of Appeal did not conduct any trial; all it did was to act on the record of appeal before the lower court for the conduct of its own judicial business. Such records of appeal being public documents must be certified within the purview of sections 111 and 112 of the Evidence Act. Thus, the question in issue here is not “admissibility of public documents” within the purview of sections 97 and 109 of the Evidence Act but that of certification of public documents.

Now, putting aside the appellant’s counsel argument that the respondent’s fourth ground of objection was not brought timeously or even that no notice of the objection was gi ven in the respondent’s application to argue preliminary objection filed on 18th September, 2001, a perusal of the records of the court show that there are two (2) notices of appeal both dated 11th April, 2000. One is contained in the main record of appeal and the other is contained in the supplementary record of appeal. The first is contained from pages 34 – 38 while the second is at pages 12 – 16.

Both notices of appeal contain stamps showing that they were filed in the Court of Appeal on 13th April, 2000. But while the certification contained in the notice of appeal in the main record of appeal may not be so obvious, the certification on the notice of appeal contain in the supplementary record is very clear. In the circumstance, I have no doubt in my mind that the notice of appeal was indeed certified.

Furthermore, by virtue of Order 3 rule 9(4) of the Court of Appeal Rules, 2002, it is not necessary for copies of individual documents in a record of appeal to be separately certified, but the Registrar of the lower court must certify as correct, each copy of the record transmitted by him in accordance with the rules. Senator Dagana Ndeyaka & 1 Or. v. Senator Isa Mohammed & Ors. (2006) 17 NWLR (Pt. 1009) 655 at 677.

In the instant case, both the main record of appeal and the supplementary record of appeal were duly certified by the Registrar of the lower court. There is therefore, no need for the separate certification of each document in the record of appeal. For these reasons, the respondent’s 4th ground of objection is also overruled.

Having ruled against the four grounds of objection argued by the respondent. The respondent’s preliminary objection is hereby dismissed.

I will now proceed with the issues for determination as formulated by the appellant in the main appeal in seriatim.

Issue 1

Whether the proceedings of the 29th April, 1998 and 30th day of August, 1999 respectively were improper law.

In arguing issue No. 1 the learned counsel for the appellant attacked the proceedings of 29th April, 1998 on the ground that the notice of motion for judgment in default was not served on the Appellant and submitted relying on the cases of Madukolu v. Nkemdilim (1962) Vol. 11 All N.L.R. 581 at 589-590, Scott-Emuakpor v. Ukavbe (1975) 12 S.C. 41 and A.C.B. Plc v. Losade (Nig.) Ltd (1995) 7 NWLR (Pt. 405) 26 that where service of process is required. failure to serve the process in the manner prescribed by law is a fundamental omission being a condition precedent to the court’s exercise of jurisdiction and that in the instant case. failure to serve the motion for judgment on the defendant/appellant is not a mere irregularity but a fundamental irregularity which vitiated the entire proceedings and entitles the appellant to have the judgment of the trial court set aside.

Appellant’s counsel furthered that in particular the learned trial Judge was wrong to have entertained the respondent’s motion for judgment in the pendency of the defendant’s/appellant’s statement of claim in the court’s file, however irregularly filed.

In the instant case, said appellant’s counsel, the 2nd defendant/appellant has filed a statement of defence, the existence of which the lower court acknowledged and which the said statement of defence the trial court never set aside.

Relying on the cases of United Bank for Africa v. Nwora (1978) 11 – 12 S.C. 1; and Sodipo v. Lemminkainen OY (1986) 1 NWLR (Pt. 15) 220, counsel submitted that a court cannot shut its eyes to a statement of defence in the courts file while considering a motion for judgment.

In relation to the proceedings of 30th day of August, 1999 which was the ruling on the attempt by the defendant/appellant to set aside the default judgment, counsel for the appellant submitted that the learned trial Judge was wrong to have based its decision on the premise that the defendant/appellant had shut itself out of the proceedings by its non-filing of the memorandum of appearance. That the learned trial Judge on the 30th day of August, 1999 failed to consider the recognized grounds for the setting aside of a default judgment laid down in cases such as Williams & Ors. v. Hope Rising Voluntary Society (1982) 1 – 2 SC 145, (1982) 1 All NLR 1, and the principle guiding the treatment of the content of an uncontrovel1ed affidavit as enunciated in Nwosu v. Imo State Environmental Sanitation Agency (1990) 2 NWLR (Pt. 135) 688 at 721 and Nwanganga v. Mil. Government of Imo State (1987) 3 NWLR (Pt.59) 185. And that in spite of the existence of the statement of defence, the learned trial Judge was content on the 30th of August, 1999 to shut out the defendant/appellant on the ground that it has not filed a memorandum of appearance.

In response to the appellant’s issue No.1 the respondent submitted that the questions here are:

Did the appellant comply with the provisions of Order 13 rule 1 of the High Court of Akwa Ibom State Civil Procedure) Rules, 1989? And, what is the consequence of non-compliance with the said statutory provision. Respondent submitted that the first question is answered in the negative that is to say that the appellant did not comply with the provision of Order 13 rules 1 and 2 of the High Court of Akwa Ibom State (Civil Procedure) Rules, 1989. The consequence of non-compliance that is not entering appearance according to the respondent is that it precluded any further proceedings on the writ of summons.

The condition precedent to defending the action in suit No. HAB/40/97 said respondent was the filing of a memorandum of appearance within the time limited on the writ, which in this case, was thirty days. Respondent relied on the cases of FC.M.B. v. Abiola & Sons Ltd. (1991) 1 NWLR (Pt. 165) 23, Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523)1, (1997) 52 LRCN 2109 and Nwabueze v. Obi-Okoye (1988) 4 NWLR (Pt. 91) 664, (1988) 10 – 11 SCNJ 81, the respondent then joined the learned trial Judge in relying on the case of Odugbesan v. Pacific Insurance Co. (1979) 2 FNR 218 to say that the legal position is that the expression “enter an appearance” was defined by the Learn ed Authors of the 1979 rules of the Supreme Court under Order 12, in the second paragraph of the notes thereunder in the following words:

“Appearance is the process by which a person against whom a suit had been commenced

(a) Show his intention to defend the suit and

(b) Submit himself to the jurisdiction of the court.

An appearance duly entered, whether conditional or not prevents a judgment in default being signed, but until an appearance is duly entered, the defendant is not entitled to take any steps in the action or proceedings”.

The respondent agreed with the learned trial Judge and urged the court to hold “that failure to submit to the jurisdiction of the court by entering an appearance thereto precludes any further proceedings on such writ.”

On the issue of service of the motion for judgment, respondent submitted that the appellant was at fault for not providing an address of service within the Ikot Abasi Judicial Division of the High Court of Akwa Ibom State for service on it of court processes, the motion for judgment had to be served on the secretary of the appellant company at its Head Office at 24 Oba Akran Avenue, Ikeja, through the United Parcel Service. And that the domestic air bill No. 8075456 dated 24th March, 1998 from the United Parcel Service evidencing service of the motion for judgment together with supporting affidavit is exhibited as exhibit A to the affidavit of service filed along with the respondent’s brief

It is better to start tackling issue No. 1 from the question of whether the defendant/appellant was ever served with the motion on notice for judgment in default which led to the decision of the learned trial Judge on 29th April, 1998 or whether there is any evidence from the record of proceedings to show that the defendant/appellant was served with the motion on notice for judgment in default.

Paragraphs 8 – 14 of the uncontroverted affidavit in support of the defendant’s/appellant’s motion on notice to set aside the judgment delivered in suit No. HAB/40/97 on 29th April, 1998 in default of appearance read thus:

8. That we were never aware of the trial or of the judgment in this mailer until 20th May, 1999 when the bailiff of the High Court of Lagos State besieged the 2nd defendant/applicant’s office at Ikeja in order to levy execution in respect of a judgment in this mailer but the execution had been stayed.
9. That the 2nd defendant/applicant was never aware of the date fixed for hearing of the suit or when judgment was delivered.
10. That the 2nd defendant/applicant only knew of the said judgment on 20th May, J 999.
11. That 1 was informed by the said bailiffs and I verily believe that judgment was entered for the plaintiff/respondent on the 29th April, 1998 against the 2nd defendant/applicant for the said sum of N2 million as endorsed on the writ and another sum of N123,000.00 being interests and costs.
12. That though the court granted leave to the plaintiff/respondent to serve the writ and other processes in this suit on the 2nd defendant/applicant, no hearing notices or other processes were received to indicate the commencement of the hearing in the matter.
13. That the 2nd defendant/applicant has a valid defence to this action and had in fact filed its statement of defence dated 1st December, 1997 by which it denied the claim that any extraneous substance could be found in any of its products as alleged by the plaintiff/respondent or at all. A copy of the said statement of defence is herewith attached and marked “A”.
14. That it is in the interest of justice that this application be granted so that the case can be tried on its merit.

Paragraphs 8, 9, 10 and 12 of the defendant/applicant/appellant supporting affidavit of 24th May, 1999 are depositions to show that the appellant was neither served with the motion on notice for the judgment in default nor hearing notices to indicate the commencement of the hearing in the matter.

The only explanation in relation to the service of the motion for judgment in default by the learned trial Judge could be found in the ruling/judgment in suit No. HAB/40/97 delivered on 29th April, 1998. At page II of the record of appeal the learned trial Judge in his ruling remarked thus:

“On the 26th day of March, 1998, a motion came before this court brought by the plaintiff in suit No. HAB/40/97. The motion was brought under Order 14 rule 1 of the High Co un Rules, 1989. 1 observed that the plaintiff was represented by counsel but the respondent was not. I demanded to know whether the respondent was served. The 1st respondent was present in court. But legally unrepresented. The 2nd respondent was absent and not legally represented. I then requested to see the proof of service of the motion papers on the 2nd defendant/respondent. Such evidence was placed before this court. Thereupon I heard the motion since this court cannot work or function at the pace of any litigant”.

Based on the above facts and in arguing that the defendant\appellant was not served with the motion on notice for judgment in default, appellant’s counsel stated that the learned trial Judge, failed to state clearly what proof of service was placed before him. Further, that the learned trial Judge should only have been satisfied that the appellant had been served the motion for default judgment by referring to the affidavit of service and or record of service pursuant to Order 12 rules 28 and 31 of the High Court of Akwa Ibom State (Civil Procedure) Rules, 1989.

Truly, and as was held in the case of Alhaji Dahiru Mohammed v. Taji Mustapha (1993) 5 NWLR (Pt. 292) 222 at 232:

‘The certification of service or the affidavit of service is generally enclosed in the case file of the suit concerned. so that at the hearing or mention. the Judge by referring to the case file readily see whether there is any such document indicating service or not.”

In the same case of Dahiru Mohammed v. Taji Muslapha (supra) the Court of Appeal (Jos Division) held at pp. 232 – 233 that:

“That there are several ways of proving service of court processes under the Plateau State High Court (Civil Procedure) Rules.

These are:

(a) By certification of service signed by the process server under Order 5 rule 16(1).

(b) Proof of service by affidavit under Order 5 rule 16(2)

(c) The appearance in court of the party served as ordered in the process or on the return date stated in it or on the hearing notice attached thereto. Each of these modes of service however affords a prima facie evidence of service only so that although a court can properly act on any of them, a defendant is not precluded from rebutting service by oral evidence where there was in fact none …”

In the instant case, I cannot but agree with the learned counsel for the appellant that the defendant/appellant was not served with the motion for judgment in default or perhaps put differently that there was nothing in the record of proceedings at the lower court to indicate that the defendant/appellant was served with the motion on notice.

This holding is not in any way affected or disturbed by the more ridiculous assertion in the respondent’s brief of argument that:

“The domestic air bill No. 8075456 dated 24th March, 1998 from the United Parcel Service evidencing service of the motion for judgment together with supporting affidavit is exhibited as exhibit A to the affidavit of service filed together with the respondent’s brief.” (page 12).

What then are the consequences of the failure of the plaintiff/respondent to serve the motion for judgment in default on the defendant/appellant?

In Mohammed v. Mustapha (supra) p. 231 the Court of Appeal held that before a court can have jurisdiction to adjudicate on a matter it is a fundamental condition that a defendant is served with the process, failure to serve process, where the service of process is required. is a failure which goes to the root of the jurisdiction of the court. Any proceedings in such a case is a nullity. Skenconsult v. Ukey (1981) 1 SC 6, Odita v. Okwudinma (1969) 1 All NLR 228, Union Beverages Ltd. v. Adamita (1990) 7 NWLR (Pt. 162) 348, ACB Plc v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt. 405) 26 at 44. The second aspect of issue No. 1 is the insistence by the learned trial Judge in the ruling of 30th August, 1999 that the defendant/appellant having not “entered an appearance” within the meaning of Order 13 rule 1 of the Akwa Ibom State (Civil Procedure) Rules, 1989 by not filing a memorandum of appearance cannot participate in the proceedings and cannot in fact argue the application to set aside the ruling/judgment of 29th April, 1998, the filing of a statement of defence notwithstanding. To use the words of the court as contained in page 21 of the record:

“….. secondly what does this definition imply in this case it is the mind of the court that from the wording of that definition, the 2nd defendant by Order 13 rule 1 the 2nd defendant shall file a memorandum of appearance. The operative word is “shall”. He shall file a memorandum. It imports an obligation. He must do so. That is to say it is a condition precedent to the 2nd defendant participating however in the proceedings; I will also interpret that to mean that the 2nd defendant/applicant had no place to stand and no leg to stand upon to file the purported statement of defence in this suit. I will also hold that so long as the memorandum of appearance was in fact filed (sic), the learned counsel for the 2nd defendant had no place to stand and no leg to stand upon to argue this application in so far as no memorandum of appearance was filed in this matter…”

For all these, the learned trial Judge claimed to have relied on the decision in the case of Odugbesan v. Pacific Insurance Co. Ltd. (1979) 2 FRN Page 217. In Turn, the learned counsel for the appellant in his brief of argument declared that Odugbesan v. Pacific Insurance Co. Ltd. is bad law and then cited a host of more recent cases for the meaning to -“enter appearance”. For the sake of clarity, let us repeat what the learned trial Judge has quoted Odugbesan v. Pacific Insurance Co. Ltd. (supra) to have said:

“Appearance is the process by which a person against whom a suit had been commenced

(a) show his intention to defend the suit and

(b) submit himself to the jurisdiction of the court

An appearance duly entered whether conditional or not, prevents a judgment in default being signed, but until an appearance is duly entered, the defendant is not entitled to take any step in the action or proceedings.”

First, it would be seen from this definition that it is the filing of the memorandum of appearance that brings a defendant within the jurisdiction of the court. The words “submit himself to the jurisdiction of the court” in that con means voluntarily manifesting or voluntarily producing evidence that he is prepared to defend the case without the exercise of the coercive jurisdiction of the court. In other words, it is the service of the writ of summons and not the filing of the memorandum of appearance that brings a defendant within the jurisdiction or the coercive powers of the court. The attempt to link the exercise of the courts jurisdiction to the filing of the memorandum of appearance in this case, first by the learned trial Judge and also by the respondent is preposterous and wrong in law.

Also, when the definition in the Odugbesan’s case (supra) talks about the Defendant is not entitled to take any step in the action or proceedings” it means that no such steps would be taken if an objection is taken as to the irregularity of his not filing a memorandum of appearance, the expression does not and cannot override the constitutional provision as to fair healing. In other words, the filing of memorandum of appearance is to be used as a shield by the defendant and not as in the present case as a sword in the hands of the plaintiff.

From this perspective, I am not prepared to go as far as the learned counsel for the appellant to say that the decision in the Odugbesan v. Pacific Insurance Co. case (supra) is bad law. I think it was the interpretation placed on the decision by the learned trial Judge in this case that was somewhat misleading.

The point I have been making above becomes clearer by the judgment of the Court of Appeal (Benin Division) in British American Insurance Company Ltd. & 1 Or v. Onia Edema-Sillo (1993) 2 NWLR (Pt. 277) 567 at 576, Akpabio, JCA who read the lead judgment had this to say:

“It is a matter of common sense that once the writ of summons in a case is served on a defendant, he automatically becomes a party to that case and will be bound by whatever decision is taken in that case, regardless of whether he entered appearance or not. Thus, service of court process on a defendant is the determining factor as to whether the defendant is a patty to the proceedings or not, and not the entering of appearance. If it was correct that it was only when a defendant has entered appearance that he becomes a party to the suit or proceedings, then it logically follows that judgment given in default of appearance will be given in the plaintiff’s favour against a non-existent defendant and that would be absurd.

Carribean Trading & Fidelity Corp. v. NNPC (1991) 6 NWLR (Pt. 197) 352.”

And at page 518, Akpabio, JCA further held in the British American Insurance Co. Ltd. v. Edema-Sillo case (supra):

“I should also comment on the views of the learned trial Judge that until a defendant has entered appearance in a suit, he has not subjected himself to the jurisdiction of the court and so should not be granted any indulgence. It is my view, with due respect to the learned trial Judge, that the present legal position appears to be that once a defendant has taken any step in the proceedings, such as asking for extension of time within which to file any paper or do this or that, he is deemed to have submitted himself to the jurisdiction of the court. It appears to me therefore to have been a ciculus in extri cubulis (a vicious circle) for the learned trial Judge to refuse to extend time for appellants to file their memorandum of appearance because they have not yet filed their memorandum of appearance to bring themselves within the jurisdiction of the court….”

In the present case also, it was wrong for the learned trial Judge to shut out the defendant/appellant and deny it of participation in the proceeding to set aside the judgment in default on account of the fact that it has not filed a memorandum of appearance. More especially as the defendant/appellant has filed a statement of defence albeit irregularly before the same court. Perhaps one should add that the existence of the statement of defence of the defendant/appellant would have been at least a factor to be taken into consideration in denying the plaintiff/respondent the motion for default judgment in the first instance with the option to adjourn the matter for an opportunity to the defendant/appellant to present its defence.

For example, in United Bank for Africa v. Nwora (1978) 11 – 12 SC J at 8 Fatayi-Williams, JSC (as he then was) held “that in a motion for judgment for want of defence, if a defence has been put in though irregularly, the court will not disregard it, but will see whether it sets up ground of defence, which if proved, will be material, and if so, will deal with the case in such a manner that justice can be done.”

Obviously, the presence of the statement of defence in the court’s file in the instant case imposed on the court a duty to be cautious in deciding the motion for judgment in default of appearance see Sodipo v. Lemminkanen OY (1986) 1 NWLR (Pt. 15) 20.

Accordingly, I am in agreement with the learned counsel to the appellant that the refusal of the trial court to consider the defence of the defendant/appellant and/or hear the said defendant/appellant, solely on the premise that it had not filed a memorandum of appearance was wrong in law and the judgment in default based thereon ought to be set aside on this ground.

I hold therefore in relation to the appellant’s issue No. 1 that the proceedings or the 29th day of April, 1998 and that of 30th day of August, 1999 respectively were not proper in law.

Issue No. 1 is therefore resolved in favour of the appellant.

Issue No.2

Whether the appellant was denied a fair hearing by the lower court and whether a travesty of justice was committed by the lower court on the appellant by the denial of fair hearing?

On issue No.2, the appellant submitted that in all the circumstances of the present case, the appellant cannot validly be said to have been given a fair hearing in the lower court. before the entering of the judgment in default against it and the refusal to set aside the said default judgment. Counsel for the appellant reiterated the two pillars of the concept of fair hearing as that of nemo judex in causa sua and audi alteram partem and submitted that the true test of fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. In relation to the present case appellant counsel submitted that he was not informed of the hearing of the motion for default judgment either by service of the said motion on it or by issuance of a healing notice on it rather, the learned trial Judge placed undue reliance on the testimony of the plaintiff/respondent without satisfying himself through an affidavit of service and/or any other records of service in the case file that indeed the appellant has been served with the motion for default judgment and ignored the statement of defence by the appellant.

In response to appellant’s issue No.2, the respondent insisted that the learned trial Judge exercised its jurisdiction (sic) properly by following the procedure or rules provided for it to do so; and complied very strictly with the provisions of Order 13 rule 1 and Order 25 rule 2(1) of the High Court Akwa Ibom State (Civil Procedure) Rules, 1989. He added that rules of the court must be obeyed as they form the basis of a fair trial. Respondent relied on the case of Adediran & 1 Or. v. Interland (1991) 9 NWLR (Pt.214) 155, (1991) 6 LRCN 204 114.

There is no doubt, that the true test of fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in a case. And that in itself is like restating the principles of nemo judex in causa sua – no one should be a Judge in his own cause and audi alteram partem – hear the other side. See Mohammed v. Kano Native Authority (1968) All NLR 424, UBN Plc v. Ikwen (2000) 3 NWLR (Pt. 648) 233 at 237 – 238. Second, it is no gain saying that the principle of audi alteram partem is intricately connected with service of judicial processes. Thus, whereas in the present case, the appellant was not served with notice of motion for default judgment and or healing notice, there is a breach of the principle of (audi alteram partem and that of fair hearing. Again, the same defendant/appellant was technically denied participation in the proceeding to set aside the judgment in default by not considering its affidavit evidence on the ground that he did not file a memorandum of appearance, that also is a breach of the principle of audi alteram partem and a denial of fair hearing.

Yet the principle of fair hearing is so fundamental that a breach of it would declare a proceeding a nullity and it does not matter whether the decision reached in the proceeding would have been the same if the principle had been observed. Adigun v. A.G., Oyo State (1987) 1 NWLR (Pt. 53) 678, Akinfe v. State (1988) 3 NWLR (Pt. 85) 729 at 753.

I hold therefore in relation to issue No.2 that the appellant was denied a fair hearing by the lower court and that a travesty of justice was committed by the lower court on the appellant by the denial of Fair hearing. Issue No.2 is also resolved in favour of the appellant.

Issue No.3.

Whether the award of damages was proper in law.

Having regards to my conclusions in favour of the appellant on issue Nos. 1 and 2 and the fundamental nature of the breach of procedures and fair hearing committed by the lower court which renders the judgment in suit No. HAB/40/97 a nullity, I do not find it necessary to consider the appellant’s issue No.3. The decision in suit No. HAB/40/97 is a nullity consequently, the decision in suit No. HAB/Misc. 29/99 is also a nullity see UAC Ltd. v. Macfoy (1961) 3 All ER J 169. Indeed, where the decision of a court is regarded as a nullity as in the instant case, the party affected by it is entitled ex debito justitiae to have it set aside – Obimonure v. Eriinosho (1966) 1 All NLR 250, Ogbu v. Urum (1981) 4 S.C.J., Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 180, Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt. 81) 129, Robert C. Okafor & 5 Ors. v. A.-G., Anambra State & 2 Ors. (1991) 6 NWLR (Pt. 200) 708.

The appeal is allowed.

Accordingly the judgment, proceedings and orders of the High Court Of Akwa Ibom State, Ikot Abasi, presided over by the Honourable Mr. Justice Okpo and dated 29th April, 1998 in suit No. HAB/40/97 and 30th August, 1999 in Suit No. HAB/Misc.29/99 are hereby set aside. The case No. HAB/40/97 is hereby remitted to the Hon. the Chief Judge of Akwa Ibom State for re-assignment and trial before another Judge of the said Akwa Ibom State High Court, Ikot Abasi.

There shall be no orders as to costs.

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Other Citations: (2007)LCN/2404(CA)