Kalu Mark Vs Gabriel Eke (2004)
LAWGLOBAL HUB Lead Judgment Report
MUSDAPHER, JSC.
Gabriel Eke, the respondent herein was the plaintiff before the High Court of Abia State in the Aba Judicial Division holden at Aba, when he claimed against the appellants herein as the defendants jointly and severally as follows:- “The plaintiff claims against the defendants jointly and severally the sum of N1,992,225.16K [One million nine hundred and ninety two thousand, two hundred and fifty five naira and sixteen kobo) being money had and received by the defendant for a consideration that has failed.”
The plaintiff filed along with the Writ of Summons the PARTICULARS OF CLAIM — thus:
“(1) The plaintiff is a businessman and resident at Aba and has his office at No. 86 Azikiwe Road, Aba within the jurisdiction of this honourable Court.
(2) The first defendant is the Managing Director and Chief Executive of the 2nd (second) defendant which has its registered office at 102 School Road, Aba within the jurisdiction of this honourable court.
(3) The plaintiff claims against the defendants jointly and severally the sum of N1,992,255.16K [One million nine hundred and ninety two thousand, two hundred and fifty five naira and sixteen kobo] being money had and received by the defendants for a consideration that has failed.”
Following Order 23 High Court (Civil Procedure Rules) 1998 of Imo State, applicable in Abia State, the plaintiff applied to have the writ placed under the Undefended List. The plaintiff accompanied the application with an affidavit and the learned trial judge placed the plaintiffs claims under the Undefended List.
By an ex-parte motion dated the 8/11/1993, the plaintiff successfully obtained leave of the trial court to serve the Writ of Summons and all other relevant court processes on the defendants by substituted means is to say by “pasting same at the door of the office of the defendants at No. 102 School Road Aba, or by delivering same on any adult employee of the 2nd defendants at the office of the 2nd defendant at No. 102 School Road, Aba.” On the 23rd November 1993 a bailiff of the High Court, Aba deposed to an affidavit of service on the defendants as follows:-
“Make Oath and say that on the 23rd day of November. 1993 at 11.30 a.m, I pasted upon the defendant’s doors the Writ of Summons/Statement of Claim, a true copy whereof hereunto annexed issued out of this court, High Court Registry, Aba upon the defendant by pasting the same personally to the defendants’ address No. 102 School Road, Aba. ”
The return date earlier ordered by the court was 7/12/1993. It was however on the 16/12/1993, that the plaintiff moved the trial court that since the defendants were not in court, to enter judgment in favour of the plaintiff. Hon. Justice G.U. Kalunta granted the prayer and entered judgment as follows:-
“The suit which was brought on the Undefended List was served on the defendants by pasting at the last known address at No. 102, School Road, Aba. The suit was served on the defendant on the 23/11/1993. After service of the Writ of Summons, none of the defendant(s) filed an intention to defend the suit consequently counsel for the plaintiff has now applied for judgment.
After a careful consideration of the affidavit filed in support of this claim, I am of the view that the defendant have no defence. I will therefore enter judgment for the plaintiff in the sum of N1,992,255.16 being money had and received by the defendant for a consideration that has wholly failed.”
The plaintiff subsequently applied for the execution of the judgment and on Friday, 7th January 1984, the execution was levied on the defendants’ properties in the presence of the plaintiff accompanied by the Court bailiffs and several policemen. After the execution, the defendants filed an application in the Court of trial seeking to set aside the judgment and the execution, claiming that they were never served with the Writ of Summons and that they only became aware of the suit when the Writ of FIFA was served on them. The motion filed on the 10/1/1994 proved for the following reliefs:
SETTING ASIDE THE JUDGMENT of this Honourable Court in this suit delivered on the 16/12/1993 as the DEFENDANTS WERE NOT SERVED WITH ANY SUMMONS OR PROCESS IN THE SUIT WHATSOEVER BEFORE JUDGMENT WAS OBTAINED.
STAYING THE EXECUTION OF THE SAID JUDGMENT AND SETTING ASIDE THE WRIT OF EXECUTION ISSUED IN THIS SUIT.
RELEASING FROM ATTACHMENT ALL PROPERTIES OF THE DEFENDANTS, AND THOSE OF OTHERS IN THE DEFENDANTS’ CUSTODY.”
The affidavit in support of the Motion sworn to by the 1st defendant KALU MARK showed by paragraph 4 that the defendants were not served with the originating summons whatsoever, and that there was no pasting of the Writ of Summons at their office at any time. The claim was completely denied and that the 1st defendant went on to explain the circumstances leading to their joint venture and how the matter was mutually settled and terminated. The plaintiff filed a counter-affidavit in opposition to the motion wherein by paragraph 5 of the said counter- affidavit he showed that the defendants were served with the originating summons by pasting the same on the door of their office at No. 102 School Road Aba and a copy of the affidavit of service sworn to by the bailiff was attached to the counter-affidavit.
After the hearing of the Application in his Ruling delivered on the 20/1/1990, the learned trial judge refused the application. He held in part of his Ruling thus:- “The suit which was placed in the undefended list was duly served on the defendants by pasting same at their place of business at No. 102 School Road, Aba. After the Writ of Summons was served, the defendants never entered appearance or file intention to defend.
It has now been settled beyond controversy that a court cannot entertain an application to set aside its own judgment delivered under the undefended List on the merits. The only court that is competent to set it aside is the Court of Appeal. Counsel on both sides have agreed that this court is certainly not competent to set aside its judgment obtained under the Undefended List. In a long line of cases, the Supreme Court had ruled that a judgment entered on an Undefended List is a judgment entered on its merit and is not a judgment on default see the case of UTC (NIG) LTD. VS. CHIEF PAMOTEI (1989) 2 NWLR (PT 103) P. 224 at 299, It seems to me that it would amount to the Court exceeding its jurisdiction, if it were to review its judgment.”
On the issue of the Service of the Originating Process, the learned trial judge continued: “The other issue which was vigorously canvassed by counsel on both sides is whether the defendants xxxxxxxx were served with the WRIT OF SUMMONS. Following an application that the WRIT OF SUMMONS be served by Pasting same at the door of the defendants xxxxxxxx at 102 School Road, Aba, or by delivering same to any adult employee of the defendants, the court on the 11th of November, 1993, granted the application that the Writ be pasted and the bailiff swore to an affidavit to that effect on the 23rd of November, 1993. The mode of service adopted was based on Order 12 rule 5 of the High Court Rules which stipulated thus:-
“(1) Where it appears to the Court (either after or without an attempt at personal service) that for any relevant reasons personal service cannot be conveniently effected the court may order the service be effected.
(a) By delivering of the document to some adult inmate at the usual or last known place of abode or business of the person to be served.”
(2) “It seems to me that where a bailiff or any officer of the court whose duty is to serve the process, swears to an affidavit of service, that service was effected in accordance with Order 12 rule 5 that affidavit of service is in my view a prima facie proof of the matter stated or endorsed therein. It will therefore be wrong for the court to go behind the endorsement contained in the affidavit of service except where it could be established that the bailiff never effected service but merely swore to a false affidavit of service.
In the instant case it does appear to me that service of the Writ of Summons was duly effected on the defendants in accordance with the order of the Court for substituted service. The denial of service by the defendant is a mere after thought and ought to be rejected.”
The learned trial judge then proceeded to refuse the application. The defendants felt unhappy with the turn of events, they filed a Notice of Appeal against the ruling. The Notice of Appeal was amended and the Court of Appeal considered the following issues for the determination of the appeal:-
“1. Whether it was proper for the trial court to have concluded that there was service of the Writ of Summons on the defendant without calling oral evidence to resolve the conflict in the affidavits of the parties on the fundamental issue of service of the process.
Whether, considering the evidence before the trial court, the conclusion that there was due process was proper.
Whether it was proper for the trial judge to have refused to set aside a judgment entered under the Undefended List, when from the substance of the affidavits of the parties before him the amount was not liquidated.”
The Court of Appeal in its consideration of the issues placed before it in its judgment delivered the 6/3/1997 dismissed in its entirely the defendants’ appeal. The Lower Court affirmed the trial court by holding (1) a judgment obtained under the Undefended List procedure cannot be set aside except by way of an appeal. (2) permitting litigant to challenge affidavits of service by bailiffs or other officers of the Court would open up a floodgate of cases and (3) that the learned trial judge had sufficient materials before him to resolve the conflict in the parties affidavits in relation to the question of service of the Writ of Summons without the need to call for oral evidence.
The defendants (hereinafter referred to as the appellants and the plaintiff as the respondent) still felt disgruntled with the judgment of the Court of Appeal and have now appealed again to this Court. It was with the leave of this court that an Amended Notice of Appeal was filed on 13/1/1998. The grounds of appeal contained in the Amended Notice of Appeal aforesaid said:-
“(i) GROUND ONE ERROR OF LAW
The Court of Appeal erred in law when it upheld the trial court’s decision that the appellants were properly served the Writ of Summons in the suit in the court below and thus the rule of fair hearing was not breached.
PARTICULARS OF ERROR
(a) The appellants denied being served either by personal service or by pasting on the door as ordered by the court.
(b) The respondent relied on affidavit of service which contained claim of service of a non existent process, namely, a statement of claim.
(c) There was no oral evidence called to explain the circumstances of the service and resolve the conflict between the parties.
GROUND TWO: ERROR OF LAW
The Court of Appeal erred in law when it concluded thus; in the lead judgment-
“Applying the above cases in the instant appeal after a careful consideration and critical look, the conflict as to service or non-service is not irreconcilably in conflict thereby required the taking of oral evidence by the learned trial judge as he had sufficient materials before him thereby making the taking of oral evidence unnecessary as to take or not to take oral evidence depends on the facts and circumstances of this case except where the court finds the conflict in the affidavit irreconcilably in conflict.”
PARTICULARS OF ERROR
(a) The learned justices failed to appreciate that the circumstance of the instant case made the affidavit of service the germane issue before the court.
(b) There was no other fact than the challenged affidavit of service upon which any resolution could have been based, and no other evidence that was used to reconcile the conflict.
(c) The conflict whether there was service or not was irreconcilable, and was not reconciled before a decision was reached.
(d) The Court of Appeal failed to appreciate the fact that appellants were denied the opportunity to rebut the claim of service by the failure of the trial court to allow oral evidence to prove or disprove service.
GROUND THREE: ERROR OF LAW
The Court of Appeal erred in law when it sustained a decision that was incompetent.
PARTICULARS OF ERROR
(a) The appellants were not served the Writ of Summons.
(b) The judgment emanating from such a proceeding offends the rules of fair hearing which renders the decision null and void.
GROUND FOUR: MISDIRECTTION
The Court of Appeal misdirected itself in law which occasioned a miscarriage of justice when it held in the lead judgment. thus:
“It is pertinent to state that ground 2 of the amended grounds of appeal was set up in this judgment. Looking at the ground critically, the Issue 2.03 upon which appellants based the issue, with respect, did not correlate or accentuate the said ground of appeal. As there is no nexus between the ground of appeal and Issue 2.03 with respect to the Senior Advocate as the issue has not been based on competent ground of appeal, it lacks potency and incompetent, so Issue 2.03 lacks merit as there is no correlation between it and ground 2 of the amended grounds of appeal Issue 2.03 is unmeritorious and lacking in substance leading to its rejection.”
PARTICULARS OF MISDIRECTION
(a) The same judgment had earlier held the ground 2 of the amended Grounds of appeal as competent.
(b) Issue 2.03 is related to ground 2 of the grounds of appeal.
(c) This misdirection as to competence and non relation led the Court of Appeal to fail to consider a ground of appeal before it.
(d) The appellants were entitled to have all their grounds of appeal considered.
GROUND FIVE: ERROR OF LAW
The Court of Appeal erred in law when it sustained a judgment of a high court made on the Undefended List when the sum claimed therein was not liquidated.
(a) The affidavit filed with the Writ of Summons stated clearly that what was in issue was a joint business transaction between the parties.
(b) The jurisdiction of a High Court to enter judgment in the Undefended List is limited to claims for liquidated sums.
GROUND SIX: MISDIRECTION
The Court of Appeal Misdirected itself which misdirection led to a miscarriage of justice when in the leading judgment, Onalaja JCA held:
“………It is trite law that an aggrieved party against whom a judgment is entered under UNDEFENDED LIST procedure can only complain by way of an appeal against that said judgment based of the principle that the trial judge cannot sit on appeal against his own judgment”.
PARTICULARS OF MISDIRECTION
(a) A judgment to which the “trite law” stated in the quotation above applied would have been a competent judgment, ab initio.
(b) An infringement of the rules of natural justice will have the same nullifying effect on a judgment obtained under the Undefended List as it would have on a judgment after hearing.
(c) A party has an option to appeal against a judgment which the party believes to be a nullity, or to apply before the same court to have it set aside.
(d) A judgment obtained in the Undefended List is not excluded in the exercise of this option.
GROUND SEVEN: ERROR OF LAW
The Court of Appeal erred in law when in the leading judgment, ONALAJA JCA held:
“there has not been established by the fact of any act of impropriety or official falsity of the affidavit of service deposed to by the bailiff, any finding to the contrary will open a flooding-gate to litigants of deposing to affidavit of non-service thereby rendering the work of bailiff impotent leading to delay in the administration of justice.”
PARTICULARS OF ERROR
(a) An affidavit of service that purports to have served a process that was not in existence is a false affidavit.
(b) An affidavit of service without annexure of what was served is contrary to the rules and thus irregular.
(c) A Court of Law in its decision making must be devoid of sentiment: ADIWEU V. AYINDE (1993) 8 NWLR (Pt. 313) 516 at 512.
(d) Affidavit of service is only a rebuttable prima facie Evidence of service.”
Now, the appellants have identified, formulated and submitted to this Court the following issues as arising for the determination of the appeal: –
Whether under the laws of Nigeria the only option available to a party disputing a judgment entered against that party under the Undefended List is an appeal against that judgment.
Whether the conclusion that the appellants were properly served with the Writ of Summons without oral evidence being called to resolve the issue was proper.
Whether the judgment of the High Court which was sought to be set aside was a competent judgment.
Whether Issue 2.03 in the Court of Appeal had no sustaining ground.
Whether a bailiff’s affidavit of service is a conclusive proof of service, under the law.”
The learned counsel for the respondent had in the respondents’ brief adopted similar issues for the determination of the appeal. I shall consider this appeal by reference to the issues as formulated by the appellants.
ISSUE NO. 1
Now, in its judgment per Onolaja JCA concurred to by Katsina Alu JCA [as he then was] and by Rowland JCA, the lower court observed:
“I confirm the Ruling of Kalunta J, of 20th January, 1994 wherein he refused to set aside his judgment delivered on the 16th of December, 1993 in the Undefended List against the appellants who in any event have not complied with appealing against the judgment entered in the Undefended List, it is trite law that an aggrieved party against whom Judgment is entered under the Undefended List procedure CAN ONLY COMPLAIN BY WAY OF AN APPEAL against the said judgment of the trial court based on the principle that a trial judge cannot sit on appeal against his own judgment. This must have motivated the appellants to pray to set aside the judgment for non-service which contention failed in this appeal see UTC (NIG) LTD. VS. PAMOTEI (1989) 2 NWLR (Pt. 103) P. 244.”
Now, the appellants have argued that, where a judgment had been entered on the Undefended List, an aggrieved party may still apply to the same court to set aside its judgment so entered on the grounds for example that the judgment entered was a nullity. A court has always the jurisdiction to set aside its null orders. Learned Counsel referred to
SKENCONSULT LTD. VS. UKEY (1981) NSCC (Vol. 12) 1 at 16. OKAFOR AND OTHERS VS. A. G. ANAMBRA STATE & OTHERS (1991) 6 NWLR (Pt. 200) 659, 680. It is finally submitted that, it is a serious misdirection of law for the Court of Appeal to hold that the only way the appellants could attack the judgment in this case was only by way of appeal and it was that attitude that led the Court of Appeal to treat the issue of service for the process in this case with levity.
The learned counsel for the respondent, on the other hand argued that a judgment entered on the undefended List cannot be set aside by way of motion, there must a be fresh action or an appeal. BANK OF THE NORTH LTD VS. INTRA BANK S.A. 1969 1 ALL NLR 91.
Learned counsel also referred to the UTC VS. PAMOTEI case supra and submits further that a judgment obtained under Undefended List is one on merits which can be set aside only on appeal or by another action. Learned counsel further referred to the following cases in support of the submission. UAC TECHNICAL LTD. VS. ANGLO CANADIAN CEMENT LTD. (1966) NMLR 349; J. BAERTHLE & CO. LTD. VS. LIMA SERVICES LTD. (1992) 1 NWLR (Pt. 217) 273; CHIEF B.C. AGUEZE VS. PAN AFRICAN BANK LTD. (1992) 4 NWLR (Pt. 233) 176., EZE CHRISTIAN N. NWANOSIKE VS. DR. L. O. UWECHEA (1981) 1 MSLR 52, ACB LTD. VS. M. E. OGON (1973) 3 ECSCR (Pt. 1) 125.
It is again argued that the case of SKENCONSOLT LTD VS. UKEY supra relied heavily in this appeal by the appellants is irrelevant and inapplicable. It is not a case based on Undefended List but a matter based on section 98, 99, and 101 of Sheriffs And Civil Process Act in a declaratory action, nor was the case of OKAFOR VS. A.G. ANAMBRA STATE supra applicable. It is finally submitted that the decision in BANK OF THE NORTH VS. INTRA BANK and UTC VS. PAMOTEI (supra) should be followed.
Now, there is no doubt that the judgment in this case the appellants wanted to set aside was a judgment obtained against the appellants on the Undefended List. A judgment entered on the Undefended List is a judgment entered on its merits and is not judgment entered on default. There is indeed inherent power for a court of record to set aside its judgment entered into in default of taking any procedural step such as in default of appearance, generally called default judgment as Lord ATKIN put it in EVANS VS. BARTLAM 1937 AC 48O:
“The principle obviously is that unless the court has pronounced a judgment upon the merits, or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any rules of procedure.”
I agree with the learned counsel for the respondent and the decision of the lower court may appear to be right as per the procedure for setting aside default judgment is adopted in setting aside judgment obtained under the Undefended List procedure. A judgment obtained on the undefended List is a judgment on the merit and the procedure adopted in setting it aside in the case of BANK OF NORTH LTD. VS. INTRA BANK supra by relying on the provisions of the old English Rules under Order 14 rule 11 of the said old rules in dealing with default judgment was wrong and the judge would have no power to set aside its judgment under these rules dealing with default proceedings in a matter where the judgment was entered under the Undefended List. So long as the judgment was obtained the merit, a trial court will not have the jurisdiction to set aside its judgment even if there was a mistake. In LEVENTIS MOTORS VS. MBONO (1961) ALL NLR 539, the plaintiffs claim was for the sum of £4204.55.6d defendant did not file a notice of intention to defend nor was he present nor represented at the hearing. Through error, the plaintiffs counsel asked judgment in the sum of £294.2.10 for which judgment was duly entered. It was held that the trial court could not interfere with the judgment in the absence of the agreement of both parties.
But, however, if the judgment is a nullity the court which made it can set it aside on a motion suo motu or on an application by any party affected by it. See LAWANI ALADEGBEMI VS. JOHN FASANMADE (1988) 3 NWLR (Pt.129); VICTOR ROSSEK & OTHERS VS. A.C.B. LTD. & OTHERS (1993) NWLR (Pt. 382); OKOLI OJIAKO & OTHERS VS. ONWOMA OGUEZE & OTHERS (1962) 1 ALL NLR 58. The law is settled that any court of record, including the Supreme Court, see OLABANJI VS. ODOFIN (1996) 2 SCN J 242 at 247, has the inherent jurisdiction to set aside its own judgment given in any proceedings in which there has been a fundamental defect, such as one which goes to the issue of jurisdiction and competence of the court. See SKENCONSULT (NIG) LTD VS. UKEY (supra) A.C.B. PLC VS. LOSADA (NIG) LTD (1995) 7 SCNJ 158 at 168. Such a judgment is a nullity. A person affected by it is therefore entitled EX DEBITO JUSTITIAE to have it set aside. The court can set it aside suo motu and the person affected may apply by motion and not necessarily by way of appeal. See ADEIGBE VS. KUSIMO (1965) NMLR 284; EZE OKAFOR VS. EZEKO (1999) 6 SCNJ 209. at 225. This is common sense that if a court makes an Order which it has no jurisdiction or competence to make, it has the jurisdiction to rescind the Order so as to restore the status quo. See AKINBOLOLA VS. PLISON FISKO (1991) 1 NWLR (Pt.270) 276.
A judgment or order which is a nullity owing to failure to comply with an essential provision, such as, service of process, can be set aside by the court which gave it or made the order see ANATOGO VS. IWEKA (1995) 9 SCNJ 1 at 33-34 or (1995) 8 NWLR (Pt.415) at 547. At 586, Ogundare JSC said:-
“The general rule is that the Court has no power under any application in the action to alter or vary a judgment or order drawn up, except so far is necessary to correct errors in expressing the intention of the Court or under the slip rule” xxxxxxxxxxxxxxx. There are, however, exceptions to this rule some of which are: –
(1) A judgment or order which is a nullity owing to failure comply with an essential provision such as service of process can be set aside by the Court which gave the judgment or made the orders. xxxxxxxxxxxxxxxxxxxxx.”
See also SCOTT- EMUAKPOR VS. UKAUBE (1975) 12 SC 435. When an order is made or judgment is entered against a defendant who claimed not to have been served with the originating process, such an order or judgment becomes a nullity if the defendants proves non service of the originating process. It is a nullity because the service of the originating process is a condition sine qua non to the exercise of any jurisdiction on the defendant. If there is no service the fundamental rule of natural justice audi alteram partan will be breached, see SKENCONSULT case supra.
In view of the above, both the court below and the trial court were in error to have held that the trial court had no power to set aside the judgment because the judgment in this matter was a judgment obtained under the Undefended List. Where as in this case the aggrieved defendant complains of non-service of the process, he is raising a fundamental issue which goes to the jurisdiction and the competence the court to enter the judgment. In such a case, where the defendant proves non service on him, the whole proceedings becomes a nullity and the trial court has the jurisdiction to set it aside. It needs to be emphasised, that it is now settled law that the failure to serve process, where the service of process is required such as in this case, is a failure which goes to the roots of the case see CRAIG VS. KANSEEN 1943 KB. 256 at 262. It is the service of the process of the court on the defendant that confers on the court the competence and the jurisdiction to adjudicate on the matter. It is clear that due service of the process of the court is a condition precedent to the hearing of the suit. Therefore if there is a failure to serve the process, where the service of the process is required the person affected by the order, but not served with process, is, as mentioned above entitled EX DEBITO JUSTITAE to have the order set aside as a nullity. See MBADINOJU VS. EZUKA (1994) 8 NWLR (Pt. 364) 5. I accordingly resolve issue number one against the respondent. Under the circumstances both the trial court and the Court of Appeal were in error to have held that they could not set aside the judgment in this case merely because, the judgment was obtained under the Undefended List procedure, what the authorities state is that judgment on the Undefended List is a judgment on the merits and cannot be set aside as merely a default judgment entered in the absence of a party or in the default of a defendant to take a procedural step.
ISSUES NOS. 2 AND 5
Now, I shall deal with issues 2 and 5 together. They are concerned with the question of whether under the circumstances of this case when there is conflict on the facts as contained in two opposing affidavits, the learned trial judge ought to have resorted to taking oral evidence in order to arrive at a decision whether the appellants were served with the originating process or not. The subsidiary point is whether the affidavit of service by a bailiff is a conclusive proof of service of the process and not merely a rebuttable presumption. Now, both the lower courts came to the conclusion that the appellants were properly served with the Originating Summons. It is submitted in the affidavits before the trial judge, there are conflicting facts on fundamental issues and to resolve the conflict, the learned trial judge, was obliged to call oral evidence.
SC. 35/1997
